Regulatory Issues: Trade lawyers descend on Codex
No longer the province of food scientists, Codex meetings and standards play a role in the resolution of trade disputes.
By David Joy, Contributing Editor | 06/01/2006
In May, the Codex Committee on Food Labeling (CCFL) held its annual meeting in Ottawa and discussed a variety of topics ranging from the production of organic foods and quantitative ingredient declarations to advertising and the labeling of genetically modified (GM) foods.
The CCFL is one of approximately 20 committees of the Codex Alimentarius Commission, charged with developing international standards to promote fair trade in food products and consumer protection.
As with other Codex committees, the committee on labeling often finds itself wrestling with difficult issues on which member countries disagree. This year’s meeting was no different, with members sharply disagreeing on the labeling of genetically modified foods, country of origin labeling and whether Codex should define the term “advertising.”
The reason behind these sharp disagreements is clear. Codex standards play a role in the resolution of trade disputes. The World Trade Organization’s Agreement on Sanitary and Phytosanitary Measures references the standards developed by Codex. Many believe WTO member countries can effectively defend any trade-restrictive food regulations on grounds they are consistent with the Codex standards.
This situation has significantly raised the stakes at Codex meetings. One can imagine meetings 20 years ago featured genteel discussions among food scientists about the composition of jam. Today, the meetings are attended by trade policy experts and lawyers as well as food regulators.
Many countries try to lay groundwork at Codex that may be useful in defending any future challenges to trade barriers. Thus, it is difficult to reach consensus on certain issues simply because the national delegations have staked out their positions with an eye toward the resolution of trade disputes. This has oddly transformed some discussions at Codex committee meetings into something that resembles pre-litigation posturing.
In the case of GM labeling, many countries insist Codex continue discussing the issue even though no consensus seems possible. This is true even though no member country is truly looking to Codex for guidance on the issue. All or virtually all member countries have already established their own national laws and policies in this area.
Against this backdrop, it’s worth asking whether the conventional wisdom is correct. Do Codex standards truly operate as a safe harbor in trade disputes? Most seem to believe the answer is yes. It is worth noting, however, the fundamental obligation imposed on WTO member countries under the Agreement on Sanitary and Phytosanitary Measures is that their regulatory requirements be based on scientific principles.
Codex food standards should be relevant to the extent they are, in fact, grounded in science and reflect an international consensus. However, whenever Codex makes policy decisions that are not based on science, these decisions should carry less weight at the WTO.
Many of the issues Codex addresses are not purely scientific in nature. For example, the contentious issue of labeling GM foods includes consideration of (1) the precise meaning of “genetically modified” for this purpose; (2) whether GM foods are materially different from other foods; and (3) whether, in any event, the consumer has a “right to know” about the presence of GM-derived ingredients in a food.
Only the first two are scientific considerations. The third is purely a policy question, and one on which Codex member countries sharply disagree. In this third category, the WTO can and should scrutinize any aspects of Codex standards that may have been planted there to provide cover for a questionable trade barrier.
At present, the U.S. and other Codex member countries correctly treat the Codex standards-setting process as very important. No one seems to have yet adopted my view that Codex pronouncements that are not scientific in nature should receive more scrutiny at the WTO.
This means Codex member countries must be extremely vigilant. No member country can afford to miss a Codex committee meeting or decline to participate in a working group trying to resolve a contentious issue. In the case of GM labeling, this means the U.S. and many other countries will send a delegation to Norway in January 2007, to attend yet another working group meeting with very little chance that a longstanding, entrenched disagreement will change.
About the Author
David Joy is a partner at the Washington, D.C. law firm of Keller and Heckman LLP. He specializes in food and drug law with emphasis on the domestic and international regulation of food, food additives, food labeling, antimicrobial pesticides, and medical devices. He is a member of the District of Columbia Bar and holds a bachelor’s degree in chemistry. For more information about Keller and Heckman, visit the firm’s web site at www.khlaw.com.