An increasingly industrialized food system with more complex supply chains has created new challenges for preventing illness caused by unsafe food. Powerful agribusiness and food companies have resisted regulation of new food technologies and supply chains. The Trans Pacific Partnership (TPP) includes the U.S. and 11 countries in the Asia-Pacific region. The Transatlantic Trade and Investment Partnership (TTIP) would govern U.S. trade with the European Union. The TPP texts, available only to governments and corporate advisors for six years, were finally made public on November 5. TTIP promoters hope to finish that agreement in 2017.
There is a growing risk that these agreements could overturn, weaken or circumvent laws that protect consumers from unsafe food. Food safety issues have been part of trade disputes for decades. The U.S. has tried to overturn EU food safety rules at the World Trade Organization (WTO). The U.S. complained that EU restrictions on planting and importing genetically modified organisms (GMOs) and beef from cattle fed with hormones banned in Europe are not based on science and unfairly restrict trade. TTIP and TPP could grant new legal rights for agribusiness and food companies to sue, or threaten to sue, governments over rules and laws that protect consumers and the environment.
Trade conducted under the TPP and TTIP could mean food safety regulations, rules governing GMOs and rules to prevent the overuse of veterinary drugs, a major contributor to antibiotic resistance in humans, would be hamstrung by requirements that they meet "least trade restrictive" criteria.
TTIP and TPP are designed to ensure that food safety regulations expand trade "to the greatest extent possible" (proposed TTIP, Article 2.1). In the U.S., EU and TPP countries, food safety standards are based on risk assessments: reviews of published and unpublished studies to determine how much of a veterinary drug, pesticide residue or processing chemical in food can be consumed without damage to human health (more precisely, to adult males). But if scientific evidence is insufficient, disputed or unclear, the European Commission may use the Precautionary Principle to delay or prohibit sales of foods, ingredients, pesticides or veterinary drugs. Agribusiness companies are demanding that the U.S. Trade Representative negotiate TTIP to prevent use of the Precautionary Principle to reject their exports and to protect EU consumers.
Article 7.9 of the TPP text, on the kinds of scientific data used in risk assessments, allows bio-safety data to be withheld from the public and peer review by corporate Confidential Business Information claims. The TPP would also establish a "Rapid Response Mechanism" that would give companies new powers to challenge decisions by food safety inspectors under trade law. Given the likely increase in the volume of food imports without new resources for inspectors that are already stretched too thin, this will create powerful incentives to let shipments through quickly.
Under both TPP and TTIP, food safety standards that offer a greater level of consumer protection than international standards, even if they conform to the WTO food safety agreement, could be judged to be illegal trade barriers. Food safety regulators face a steep burden of proof to show that their regulations are the least trade-restrictive possible, a burden likely to discourage future regulation of new food technologies and products derived from those technologies.
The TPP and the TTIP will apply to the following issues, among others.
U.S. regulators consider GMOs "substantially equivalent" to their conventional counterparts, and subsequently do not require pre-market safety testing nor post-market monitoring. They have never rejected an application to deregulate and commercialize a GM seed. The U.S. Grains Council wants TTIP to speed up the more rigorous EU GMO review process to issue commercialization permits at the same time as the U.S. automatic approval process. Simultaneous approval would allow companies such as Syngenta and Monsanto to sell the same GM seed varieties in all TTIP and TPP member countries more quickly and with greater profits. In the TPP, rules pertaining to "trade in products of modern biotechnology" are not in the food safety chapter, but in the market access chapter to expedite trade in those products.
Industry groups are also pushing to circumvent or eliminate Europe's mandatory labeling of GMOs in processed foods. Many U.S. states are considering new rules on GMOs, starting with efforts to label their use in foods. WTO trade courts have already ruled against U.S. Country of Origin Labels on meat as unfair trade barriers (a decision that led Congress to abolish the popular program). TTIP and TPP rules on labeling likewise could outlaw new GMO labeling laws in U.S. states, as well as in Europe and the prospective TPP member countries.
Nanotechnology uses atomic to molecular-sized materials in industrial, consumer and agricultural products. For example, nanoclays and nano-titanium dioxide incorporated into food packaging would allow meats, fruits and vegetables to appear to be fresher for longer. But nanomaterials have been shown to pass through cell walls, including the placenta and the blood-brain barrier, raising safety concerns, particularly for nanomaterials that accumulate for long periods in the human body.
No TTIP nor TPP country has agreed on how to risk assess nanomaterials, even though many manufacturers already claim to use nanomaterials and/or apply nanotechnologies in their products. The European Commission has recommended a regulatory definition of nanomaterials and has new rules requiring labeling of food products using nanomaterials. Nanotechnology is not yet regulated, but the American Chemistry Council insists that TTIP and TPP prevent any regulatory differences that would impede trade involving products that incorporate nanomaterials.
Agribusinesses are targeting EU food safety standards for elimination, including regulations on hormone residues on meat and chemical rinses used to decontaminate poultry loaded with harmful bacteria, both of which are allowed under U.S. law.
Ractopamine, a failed asthma drug, is now used in the U.S. to produce leaner pork. However, the very controversial international safety standard for Ractopamine was based on a risk assessment reviewing just six studies, three provided by the drug's manufacturer. The drug is banned or restricted in 160 countries. The U.S. is pushing to eliminate those restrictions, despite the conflict of interest and the out of date science used in the risk assessment of Ractopamine.
The EU doesn't allow imports of poultry rinsed in diluted chlorine, instead requiring that it be produced safely from "Farm to Fork." U.S. poultry processors' use of chlorine rinses enables production line speeds of up to 140 birds per minute. U.S. farm and labor groups are fighting that practice, which results in line worker injuries and risks to worker and inspector health from breathing chlorine fumes. The U.S. TTIP proposal for food safety "equivalence" would require EU member states to allow import of products from these dangerous processes.
Trade Secrets is a series on how the United States’ international agreements influence a wide range of policies, laws and corporate activities within our borders—and beyond. From food safety to climate change and from labor to consumer protection, trade has an enormous and often invisible pull on the actions governments take and the choices available to citizens. Trade laws often displace hard-won domestic policies.
This series is a collection of primers on trade agreements and how they shape our daily lives, our workplaces and our governments.