Looking behind the US spin: WTO ruling does not prevent countries from restricting or banning GMOs

Looking behind the US spin: WTO ruling does not prevent countries from restricting or banning GMOs
Friends of the Earth
Executive Summary

The US Government is proclaiming victory in the WTO case launched against the European Union (EU) on Genetically Modified Organisms (GMOs). On 7 February the US Government used the publication of the WTO draft ruling to threaten the rest of the world “against following the European lead in throwing up bans or partial bans against genetically modified crops.” Initial analysis of the full WTO report, now leaked to Friends of the Earth, makes it clear that both the claim to victory and the threats are very misleading. The WTO interim ruling does not question the right of countries to adopt strict biosafety legislation or even bans, to protect the public and the environment from GMOs.

The interim result of the case is mixed. The report gives limited support to some of the US claims, but comes out against most and does not go nearly as far as the US hoped it would in supporting trade in the technology.

What the US lost
The US tried to obtain a ruling which explicitly declared the EU’s moratorium per se illegal. However, the WTO panel of trade experts did not accept the US’s arguments. Moreover, they reaffirm that specific and general moratoria on GMOs could be justifiable, even under WTO parameters. The ruling says: “if new scientific evidence comes to light which conflicts with available scientific evidence and which is directly relevant to all biotech products subject to a pre-marketing approval requirement, we think that it might, depending on the circumstances, be justifiable to suspend all final approvals pending an appropriate assessment of the new evidence”.

The US, together with the other complaining parties – Canada and Argentina, also claimed that the EC failed to consider applications to approve specific GM products by introducing “product specific marketing bans or moratoriums”, resulting in various violations of the EU’s WTO obligations. They argued that such specific bans and moratoria were not based on risk assessments which would constitute a violation of the WTO’s SPS agreement1. But once again, the WTO Panel did not accept their arguments, concluding that the EU breached only one of its obligations: there was “undue delay” in approval procedures for over 20 specified biotech products. All other claims that the product-specific measures breached other WTO obligations were dismissed.

The Panel did find the bans on GMOs in EU Member States Austria, Belgium, France, Germany, Italy and Luxembourg to be EU failures to meet its obligations under the SPS Agreement. Critically, however, the Panel did not question the right of the EU member States to ban GMOs, which is recognized in its main Directive 2001/18, and is permitted under the SPS agreement. What the Panel examined was whether the  elements that triggered such bans fulfilled WTO requirements. They concluded that the risk assessments presented by some Member States to justify their bans did not meet the requirements of "risk assessment" laid out in the SPS Agreement. (The Panel identified that most studies were missing the likelihood element, i.e. they did not assess “the probability of entry, establishment or spread of diseases and associated biological and economic consequences”. In the light of such interpretation, the Panel recommended that these bans should be brought into conformity with the SPS agreement. However, this part of the Panel’s interim report needs to be fully examined now that it is publicly available. The gaps and lack of consensus in scientific knowledge, and the application of the precautionary principle are fundamental issues in ensuring biosafety, thus the interpretation by the Panel needs close analysis.

Strict Biosafety rules permitted
The EU has one of the strictest regulatory frameworks for GMOs in the world, including mandatory pre-market assessments for all types of GMOs and products thereof imported to its territory, clear identification and labelling provisions, and traceability and monitoring provisions. This interim ruling does not touch upon these issues. It is therefore clear that it will not change the EU regulatory and policy regime for GMOs, and does not undermine the right of countries to introduce such strict regulatory frameworks at the national level.

In fact, the EU’s regulations were never being questioned, just the way in which they were applied. Furthermore, the ruling will not accelerate the formal approvals of GMOs in the EU, as only limited claims of “undue delay” regarding the application of EU approval procedures were upheld. It will not prevent the dozens of Governments around the world who are currently developing regulatory systems for GMOs from proceeding, as they retain every right to do. Faced with this, the US Government is now trying to use a selective reading of the ruling and media hype to dissuade governments worldwide from exercising their rights to restrict the entrance of GMOs into their countries.

Opposition to GMOs in Europe
More importantly, European public opinion remains steadfastly hostile towards GM food. The WTO did not rule on two important questions put before it, namely whether GMOs are effectively the same as non-GM foods, or if they are safe. Such a ruling is unlikely to persuade the public or EU institutions to accept GMOs. Quite to the contrary, opposition is growing: in the past few days Hungary has declared that it is in its economic interests to remain GM-free, and Greece and Austria have affirmed their total opposition to the crops. Opposition at local government level in Europe is also increasing, with more than 3,500 elected local governments and 170 specific regions in Europe now declaring themselves GM-free. As of November 2005, even the WTO’s Geneva headquarters are in a country operating a legally binding moratorium on the cultivation of GM crops. The WTO’s refusal or inability to cope with this reality is now plainly on show.

The final ruling on this dispute is expected in April 2006 and may be followed by an appeal phase. This briefing provides a preliminary analysis of the leaked WTO interim report, as well as the context of the WTO decision and likely impacts.

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