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Law Is Not on the US Side in GMO Corn Fight With Mexico
Put simply, the U.S. gets it wrong when it comes to trade rules on food safety. Their lawyers—experienced as they are—should know better.
May 14, 2024
The United States ups the ante in its legal clash with Mexico over genetically modified (GMO) corn. Last month, a trade panel released the US’s latest legal filing. It essentially doubts the science Mexico offers and claims Mexico violates obligations from the USMCA trade pact.
This regards Mexico’s Decree from April 2023 banning GMO corn for human consumption. The ban cites harms from genetic manipulation of corn seeds and cancer risks from herbicides like glyphosate, needed by GMO farms. A USMCA panel will hold hearings on American complaints in June.
The U.S. position is not as strong as it claims—far from it. Observers analyze why Mexico’s scientific justifications are on solid ground. As a law professor, I explain how the U.S. overstates its legal case, at times severely so, when it comes to the ban on GMOs in tortillas and masa (dough).
Put simply, the U.S. gets it wrong when it comes to trade rules on food safety, called sanitary and phytosanitary measures (SPS) and covered in USMCA Chapter 9. Weaknesses regard two aspects of food safety: protection levels and health risks. In a recent journal article, I offer detailed examinations of these and other obstacles.
American faults involve established international law. The USMCA is three years old and this case raises its first SPS controversy. Fortunately, there are long-settled understandings in international law specific to SPS and trade obligations. For decades, panels have interpretated the World Trade Organization’s (WTO) SPS Agreement. This will inform the USMCA panel.
SPS Agreement obligations are central to the USMCA. In the new trade pact, the U.S., Mexico and Canada expressly agreed to affirm “rights and obligations” from the SPS Agreement. Numerous tribunals have ruled on disputes about the SPS Agreement. They’ve examined food safety measures and impacts on trade in food and agriculture, similar to gripes concerning Mexico’s Decree.
Both sides refer to panel reports from SPS cases. Reports are like court opinions. The U.S. cites over 40 reports, including 16 from the highest level, the WTO’s Appellate Body. Mexico references nearly50 and 23 from the highest level. The U.S. problem : it excludes important legal aspects from these reports.
One omission regards what is called the “appropriate level of protection” (ALOP). The USMCA uses the WTO definition for ALOP: the “level of protection deemed appropriate” by the country establishing a measure to protect human life.
The U.S. gets it wrong in terms of what this level can be and who determines it, to then say Mexico inadequately defines it. Mexico is clear that for human consumption of GMO corn, its ALOP is “zero risk.”
The U.S. may not like this, but it is legal under trade rules. This is irrefutable. In 1998, the Appellate Body found “zero risk” is permitted for an ALOP. This comes from a controversy between Australia and Canada over salmon imports. In the corn dispute, the U.S. refers to the case but not to its sections approving “zero risk” levels.
This is forgetful lawyering. Trade law treatises describe “zero risk” as a settled option and interpreted as such by later trade panels. Like legal encyclopedias, treatises summarize how legal doctrine develops, based on new rulings. Attorneys and judges use them to identify how courts and panels interpret legal rules. For ALOP, American lawyers fail with the basics.
The US underplays who actually determines the ALOP. Mexico does, according to the USMCA. Trade rules are explicit that countries in situations like Mexico have wide discretion to determine the ALOP. This is “unambiguous.”
Prior cases are clear. In 2008, the Appellate Body said a country employing a food safety measure has the “prerogative” to determine the ALOP. This involved an American challenge to European Union (EU) controls of hormones in beef.
Second, the US exaggerates requirements in evaluating food safety, called “risk assessment.” Risk assessments are “evaluation[s] of the potential for adverse effects on human health.” This definition comes from the SPS Agreement and is incorporated by the USMCA. Mexico’s assessment is titled the “Scientific Record on Glyphosate and GM Crops” published in 2020 and available since then online from the National Council of Humanities, Sciences and Technologies (CONAHCYT).
The U.S. overstates what is legally needed, to then characterize Mexico’s assessment as “incoherent and inadequate.” WTO cases find that risk assessments must only establish a “potential” for adverse effects. The Appellate Body confirmed this standard in the US’s first challenge of EU controls for hormones in beef in 1998.
The standard has staying power. Ten years later, the tribunal re-affirmed this requirement in the U.S.’s second trade case against beef hormone regulations.
The standard is a fixture of SPS doctrine. Recent treatises explain that for risks in human food, trade rules are deferential to SPS measures since “protection of public health is at stake.”
In its legal filing, the U.S. demands far more than is legally necessary. It calls for excessive proof. This includes “estimates of hazard, exposure, or risk” and “levels that can cause” adverse effects when eating corn. It faults Mexico for not proving that imported GMO corn “presents unsafe levels of glyphosate residue.” These are a few examples that veer from what international trade law actually requires.
SPS cases on risk assessments further undercut American positions. In the first beef hormone controversy, the Appellate Body explained that food safety measures must have a “rational relationship with the risk assessment” and that risk assessments must “reasonably support” this food safety measure. This U.S. must have missed these trade rules, since it asks for significantly more from Mexico.
Emotionally, the U.S. presents criticisms of GMOs as fringe and unacceptable. The filing says that scientific evidence provided by Mexico only “distract[s] from prevailing scientific opinion.” This is demeaning.
Trade rules are more based on reason. They do not require SPS measures to reflect majority scientific opinion. Lawyers for the U.S. should know this. In the first fight over beef hormones, the report explained that assessments do not need to “embody” the “view of a majority” of the scientific community. Then with a second American try, the Appellate Body added that scientific support is acceptable as long as it is “considered to be legitimate science.”
Where does this take us? With legal lapses in several areas, the U.S. should try to resolve its gripes with Mexico versus pursuing fruitless disputes. The commercial reality is U.S. corn exports to Mexico have dramatically increased since the Decree.
Be careful what you ask for, when it comes to trade rulings. It is 2024 and trade lawyers for the U.S. eerily face the same legal questions from 1998 and 2008. Then they concerned American beef exports. U.S. lawyers should re-read those rulings. Trade law is clear on ALOP and risk assessments. American farmers don’t need another trade loss, they need better legal advice.
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US-China Electric Vehicle Dispute Shows Old Trade Rules Imperil Climate Action
"The climate crisis is too urgent for the U.S. or any country to allow outdated trade rules... to distract us from enacting bold climate policies," argued one campaigner.
Mar 26, 2024
As the Chinese government on Tuesday formally challenged what it termed "discriminatory" U.S. electric vehicle subsidies, climate action advocates warned that antiquated trade policies and international bickering must not be allowed to hamper the urgently needed green energy transition.
"Immediate climate action must take priority over compliance with outdated trade rules that were inked long before governments worldwide began taking the climate crisis seriously," said Trade Justice Education Fund executive director Arthur Stamoulis in response to the move by Beijing.
Melinda St. Louis, director of Public Citizen's Global Trade Watch, agreed that "the climate crisis is too urgent for the U.S. or any country to allow outdated trade rules—written long before governments were taking climate change seriously—to distract us from enacting bold climate policies."
"Existing trade rules need to be rewritten so that trade pacts can become tools for helping the world advance towards a clean, just, and sustainable economy—but we don't have time to wait."
China—which has heavily subsidized its own electric vehicle industry—on Tuesday filed a complaint against the United States at the World Trade Organization (WTO), taking aim at rules for EV tax credits included in the Inflation Reduction Act (IRA), a sweeping package signed by President Joe Biden in 2022.
"Under the pretext of 'responding to climate change' and 'environmental protection,' the U.S. has formulated discriminatory policies through its Inflation Reduction Act regarding new energy vehicles, excluding products from China and other WTO members from subsidies," said a Chinese Ministry of Commerce spokesperson, according to a translation by the South China Morning Post.
"Such exclusions distort fair competition, disrupt global industrial and supply chains, and violate WTO principles such as national treatment and most-favored-nation treatment," added the spokesperson. "We urge the U.S. to abide by WTO rules, respect the development trend of the global new energy vehicle industry, and rectify its discriminatory policies."
U.S. Trade Representative Katherine Tai said that "we are carefully reviewing the consultation request" and called out the People's Republic of China for using "unfair, nonmarket policies and practices to undermine fair competition and pursue the dominance of the PRC's manufacturers both in the PRC and in global markets."
Tai also praised "President Biden's leadership," represented by the passage of the IRA, which she described as "a groundbreaking tool for the United States to seriously address the global climate crisis and invest in U.S. economic competitiveness." She said the U.S. would "continue to pursue major new investments in clean energy technology, from solar and wind to batteries and electric vehicles and beyond."
The Associated Pressreported Tuesday that "the real-world impact of the case is uncertain. If the United States loses and appeals the ruling, China's case likely would go nowhere. That is because the WTO's Appellate Body, its supreme court, hasn't functioned since late 2019, when the U.S. blocked the appointment of new judges to the panel."
St. Louis said that "China's threatened trade attack against climate provisions in the U.S. Inflation Reduction Act is another example of why the U.S. and other nations should begin working with one another towards an immediate moratorium on the use of trade challenges against clean energy transition and other climate measures."
"We've been warning since before the passage of the Inflation Reduction Act that antiquated WTO rules would threaten our ability to realize the green transition," she noted. "Prominent labor, environmental, and consumer groups have urged the U.S. government to boldly implement the IRA as intended despite trade pact attacks—and to make a commitment not to use such trade rules to challenge other countries' climate policies."
Stamoulis pointed out that "governments worldwide are wasting considerable amounts of time and political capital attempting to squeeze potential climate measures into compliance with outdated trade and investment rules."
"Ultimately, existing trade rules need to be rewritten so that trade pacts can become tools for helping the world advance towards a clean, just, and sustainable economy—but we don't have time to wait," he continued. "A 'climate peace clause' that brings an immediate end to the ongoing trade attacks against climate measures is a necessary interim step towards helping governments transition to clean energy on the rapid timeline that is required to head off the worse possible impacts of climate change."
"A moratorium on the use of international trade agreements to challenge climate policies would: (1) help governments safeguard existing climate mitigation and transition measures by protecting them from trade challenge; (2) create the space for governments to adopt the bolder climate policies that justice and science demand without fear or threat of new trade challenges; and (3) incentivize and offer countries time to work together and resolve the underlying tensions between current trade law and the imperative for climate action," he explained.
St. Louis also called for implementing a climate peace clause to "temporarily halt cases like this one so countries can prioritize the green transition and revise the WTO rules currently creating unnecessary hurdles."
"We must move forward with IRA implementation and work to enact even bolder policies to transform our economy for a clean energy future, and support other countries that do the same," she asserted.
China's WTO complaint comes on the heels of the hottest year in human history—which concluded with a United Nations climate summit that scientists called a "tragedy for the planet" because the conference's final agreement didn't demand a phaseout of fossil fuels that are driving global heating.
Soaring temperatures have continued this year, with European Union scientists recently announcing that last month was the warmest February on record. Carlo Buentempo, director of the E.U.'s Copernicus Climate Change Service, stressed that "the climate responds to the actual concentrations of greenhouse gases in the atmosphere so, unless we manage to stabilize those, we will inevitably face new global temperature records and their consequences."
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WTO Pens 'Love Letter to Patents' as World Suffers From Big Pharma Greed
The World Trade Organization posted a Valentine's Day-themed poem just hours after failing to challenge the pharmaceutical industry's monopoly control over Covid-19 tests and treatments.
Feb 14, 2024
The World Trade Organization drew the ire of public health campaigners on Wednesday by failing to loosen the pharmaceutical industry's grip on Covid-19 tests and treatments—and subsequently posting to social media what one group described as a "love letter to patents."
The WTO said Wednesday that "consensus could not be reached" on whether to waive patent rights on coronavirus therapeutics and tests, an announcement that Health Justice Initiative founder Fatima Hassan called "a real slap in the face."
"It's proof of what we have been saying all along, that the WTO does not serve the interest of patients in the Global South because it is hijacked by high-income countries. This decision is a sign of whose lives are seen to matter the most," Hassan toldThe Guardian. "Global South governments are going to have to urgently reconsider what it means to be part of this bizarre one-sided system."
Adding insult to injury, the WTO marked Valentine's Day by posting on X—formerly Twitter—a poem that reads, in part: "Your love is like a patent, so rare and true/A work of art that only I can view/And just like some IP rights, it can never expire/Our love is like a never-ending fire."
"Is this a parody account?" the U.S.-based consumer advocacy group Public Citizen wrote in response. "Or did the WTO really just tweet a love letter to patents... on the same day it decided to prioritize patents over access to lifesaving Covid treatments in developing countries?"
"Rich countries, including our own, were not brave enough to stand up to Big Pharma to save lives."
In the summer of 2022, the WTO reached an extremely narrow agreement that clarified governments' power to use compulsory licensing to increase Covid-19 vaccine production without the consent of patent-holding pharmaceutical corporations.
The deal, condemned as a "sham" by public health campaigners, came after India, South Africa, and other nations pushed for an ambitious patent waiver that would have removed barriers to coronavirus vaccine production and access in developing countries, which were hit hardest by the pandemic.
The agreement that the WTO reached in June 2022 stated that "no later than six months from the date of this decision, members will decide on its extension to cover the production and supply of Covid-19 diagnostics and therapeutics."
But the WTO blew through that deadline as rich countries, including the U.S. and Switzerland, stood in the way of an extension.
Melinda St. Louis, Public Citizen's Global Trade Watch director, said in a statement Wednesday that "we will never forget the critical time the WTO wasted or the untold lives lost because rich countries refused to share the doses and knowledge that scientists around the world and public funds helped produce."
"Big Pharma's unfathomable profit margins would have hardly budged under this modest proposal, but their CEOs and lobbyists did not want the precedent of another WTO decision shifting the needle even slightly away from their sacrosanct intellectual property rights and toward public health," said St. Louis. "The urgency of the proposal became clearer after the U.S. government's October 2023 study revealed the ongoing unmet need for Covid treatments. Yet, rich countries, including our own, were not brave enough to stand up to Big Pharma to save lives."
"We thank South Africa, India, and the many governments, public health organizations, and global justice advocates who supported the original comprehensive waiver and helped shine a light on our trade regime's deadly prioritization of intellectual property over public health," she added.
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