There are three main legal frameworks of reference when it comes to adjudicating who is right and who is wrong in a food safety-related trade dispute: the European Union, the United States and the World Trade Organisation (WTO). Of these, the EU’s and the WTO’s are the newest and are enshrined in a more limited number of legal texts. By contrast, US food safety laws stretch back to 1906 when the US Food and Drug Administration was first established by President Theodore Roosevelt and are contained in a raft of laws and regulations adopted ever since. In response to various recent food scares, US lawmakers on Capitol Hill are currently trying to enact an overarching food safety law that will tighten inspections on food imports (see separate article).

Perhaps the single biggest clash deriving from these competing frameworks is the steadfast opposition the US administration has to a cornerstone of European food safety law: the precautionary principle. This principle permits the EU to provisionally restrict imports even where the science is not yet clear as to the dangers that product poses to human health. A US trade official accused the EU of not being guided by science with this policy. “Under the WTO Sanitary and Phytosanitary Agreement’s precautionary approach, you can take emergency measures but you must have evidence to begin with. You cannot base your action on public opinion,” the official complained.

Both the EU’s precautionary principle and the WTO’s precautionary approach (the wording of which is quite similar) stipulate that authorities who take such emergency measures must follow them up with a more comprehensive scientific assessment within a reasonable period of time (see box). The bone of contention the US has with the EU relates to what constitutes a reasonable period of time. Washington complains that this drags on for years and that in the meantime, the trade restrictions are kept in place, without it argues, there being conclusive scientific justification. It should be noted, however, that EU food safety law is very wide-ranging in its objectives, covering not just the protection of human health but also the protection of consumer interests, animal and plant health and welfare, and the environment.

There is an alternative approach, provided for under WTO rules, that might avoid the problem, namely for food and plant safety standards to be harmonized internationally. But this is often extremely difficult to achieve and neither side seems inclined to go down the road of having identical rules for the time being. Moreover, even if common standards did exist, the WTO agreement allows countries to introduce measures that result in higher levels of protection if they can find a scientific justification for this so a dispute could still arise. n

The bone of contention the US has with the EU relates to what constitutes a reasonable period of time

WTO Sanitary and Phytosanitary Agreement (1994)

“Members may introduce or maintain sanitary or phytosanitary measures which result in a higher level of sanitary or phytosanitary protection than would be achieved by measures based on the relevant international standards, guidelines or recommendations, if there is a scientific justification.” (Article 3, Harmonisation)

“In cases where relevant scientific evidence is insufficient, a member may provisionally adopt sanitary or phytosanitary measures on the basis of available pertinent information, including that from the relevant international organisations as well as from sanitary or phytosanitary measures applied by other members. In such circumstances, members shall seek to obtain the additional information necessary for a more objective assessment of risk and review the sanitary or phytosanitary measure accordingly within a reasonable period of time.” (Article 5.7, risk assessment)

EU Food Safety Regulation (2002/178/EC)

“Food law shall pursue one or more of the general objectives of a high level of protection of human life and health and the protection of consumers’ interests, including fair practices in food trade, taking account of, where appropriate, the protection of animal health and welfare, plant health and the environment.” (Article 5, General objectives)

“[...] food law shall be based on risk analysis except where this is not appropriate to the circumstances or the nature of the measure. Risk assessment shall be based on the available scientific evidence.” (Article 6 Risk analysis)

“In specific circumstances where, following an assessment of available information, the possibility of harmful effects on health is identified but scientific uncertainty persists, provisional risk management measures necessary to ensure the high level of health protection chosen in the Community may be adopted, pending further scientific information for a more comprehensive risk assessment…Measures adopted…shall be proportionate and no more restrictive of trade than is required to achieve the high level of health protection chosen in the Community…measures shall be reviewed within a reasonable period of time.” (Article 7, Precautionary principle)