International trade in genetically modified (GM) foods : different regulatory regimes and the compatibility of the European Communities' GM food regulation with world trade law

Abstract

This thesis addresses the question as to how genetically modified (GM) foods are regulated in the United States, Australia/New Zealand and the European Communities. It furthermore analyses the compatibility of the new European GM food approval and labelling regime with the law of the World Trade Organisation (WTO). Genetically modified (GM) foods raise ardent hopes and gloomy fears. The concerns range from ethical issues in relation to the manipulation process to environmental and human health concerns. At the same time, GM foods not only have an enormous economic potential but may also be the answer to some of the world's most pressing problems like hunger. These great promises and possible perils of GM foods challenge legislators to find adequate regulatory responses. Based on different experiences with regard to the regulation of the food sector and because of cultural differences, the regulatory approaches in the United States, the European Union and Australia/New Zealand differ significantly. Considering GM foods and conventional foods being "substantially equivalent" and, consequently, applying the same laws to all foods, the United States has the most liberal system. The European Communities, in contrast, advocates an approach based on precaution. Strict approval procedures and labelling requirements have been established to protect the environment and human health against possible risks. The joint Australian/New Zealand system is in many respects similar but much less stringent. Against the background of such regulatory differences and increasing GM food exports from "GM friendly" countries, the question becomes pertinent as to which domestic measures regarding such foods can be imposed without violating WTO obligations. The European Communities is much criticised for the trade-restrictiveness of its new GM food regulations. WTO challenges can be expected in an effort to strike down regulatory trade barriers. However, it is far from being clear as to how such measures are to be assessed under WTO law. It is already unclear which of the Agreements is applicable. There is limited or no case law to give interpretative guidance. However, on the basis of the available case law and legal literature, this analysis comes to the conclusion that the new European system is WTO-compliant. With regard to the approval procedure for GM foods it is argued that it meets the requirements of the relevant Agreement on Sanitary and Phytosanitary (SPS). Labelling requirements are likely to fall under the Agreement on Technical Barriers to Trade (TBT). Good arguments militate in favour of the European regulations being in accordance with that agreement. Thus, countries have considerable regulatory room left under the WTO. In the future, more international standards will be adopted in this field and may pave the way toward greater uniformity.