NAFTA 2.0: doing harm with ag biotech approval shortcuts

The NAFTA talks are advancing rapidly with very little information available to the public on their content or the possible consequences for fair and sustainable food and farm systems. This is the third in a series of blogs examining the proposals being made by agribusiness firms that take the failed Trans Pacific Partnership (TPP) as a starting point. The first blog in the series focused on proposals that could be used to delay and repeal public interest protections and the second focused on the risks of including organic standards in NAFTA.

 

U.S. agribusiness groups, like other business groups, have demanded that the negotiations to “modernize” the North America Free Trade Agreement “do no harm” to their export markets, invoking the sworn duty of medical doctors to their patients. Indeed, to increase those export markets, the U.S. Biotech Crops Alliance (USBCA) proposes that a new NAFTA chapter on agricultural biotechnology provide for a Mutual Recognition Agreement (MRA) that would require acceptance of U.S. biotech product commercialization approvals by Canada and Mexico. Corollary to that acceptance is a requirement to approve import of those approved products.

However, if the U.S. Trade Representative is the “doctor” in the agribusiness version of the Hippocratic oath, and U.S. agriculture is the patient, a biotech MRA is unlikely to cure the patient. A biotech MRA could even make the agricultural patient more ill.

In June, the American Farm Bureau Federation, a member of the USBCA, wrote to the U.S. Trade Representative, “We support adding a new chapter on biotechnology to NAFTA. Under a modernized NAFTA, USBCA requests that the U.S. government 1) enter a mutual recognition agreement on the safety determination of biotech crops intended for food and feed . . .”

A MRA is a legal framework to enable the parties (professional associations, as well as governments) to reach an agreement to recognize as valid each another’s professional licensure requirements, e.g. for accountancy, and the technical standards for industrial products.  MRAs would enable importing countries to recognize the food safety, plant health and animal health rules and enforcement mechanisms for products from exporting countries as equivalent to their own standards. Verification that parties are complying with MRAs is implemented in conformity assessments. For food and agriculture products, conformity assessment takes the form of agreement on export certification and inspection standards, rather than at the beginning of the regulatory process, review of scientific studies and data for risk assessments.

For a MRA to have regulatory and scientific substance, biotech products, including those derived from new genetic engineering (GE) techniques, would have to be regulated, with pre-market safety assessment and post-market monitoring. On September 27, 60 scientists and biosafety experts called for the regulation of new genetic engineering techniques under European Union law, noting that “Such techniques give rise to predictable as well as inadvertently generated risks when used in a context of agriculture, conservation or ecological management.”

As we wrote in July, the U.S. Department of Agriculture’s proposed rule for agricultural products derived from the new GE techniques would not, in most cases, collect and evaluate field trial data as part of pre-market safety assessment. Instead U.S. regulatory review of new GE products would be based on an “upfront review” of such data and studies as the commercial applicant chose to present. If Mexico and Canada were to agree to a USTR proposed biotech product MRA, they would be agreeing to sign a blank check that the U.S. would fill in at its convenience, since the U.S. has no agreed regulation to conduct the “safety determination” of food and agricultural products derived from the new GE techniques, as demanded by the Farm Bureau and USBCA in their letter to the USTR.

The Farm Bureau letter also requests that the USTR “develop a consistent approach to managing low-level presence of products that have undergone a complete safety assessment and are approved for use in a third country but not yet approved by a NAFTA member.” This request goes far beyond what the USTR proposed to the parties of the TPP, according to IATP’s analysis. In the TPP signed by President Barack Obama but not approved by Congress, the article on “Trade in Products of Modern Biotechnology” enables importing of agricultural products with an undefined “low level presence” of genetically modified organisms unapproved in the importing country.

However, this article would have applied only to TPP member countries. The Farm Bureau/USBCA proposal would expand the application of the article to enable import of third country exports with “low level” GE content that had not yet been approved in the NAFTA member countries.  For example, crops grown with GE seeds produced by one of the mega-merging chemical and seed companies from any non-NAFTA country could be imported, though unapproved by regulators, into the U.S., Mexico or Canada. While this proposal would benefit the global seed and chemical companies, it is impossible that such imports would “do no harm” to the Farm Bureau’s farmer members and other U.S. farmers.

In July, the USTR released its “Summary of Objectives for the NAFTA Renegotiation.” Achieving a biotech products MRA is not among the broadly described objectives. However, the USTR would, “[P]romote greater regulatory compatibility to reduce burdens associated with unnecessary differences in regulation, including through regulatory cooperation where appropriate.” The USBCA could foresee in this regulatory compatibility objective the broad basis for a future MRA. As IATP and other groups wrote in September of the EU-Canada trade deal chapter on regulatory cooperation, what NAFTA could harmonize through regulatory cooperation is the current trend of deregulation, non-regulation and industry self-regulation.

Secretary of Commerce Wilbur Ross told the Bipartisan Policy Center in May that the TPP will be “a starting point” for the NAFTA negotiations. While the USTR has yet to table NAFTA negotiating proposals, it will be surprising if the USTR does not table the TPP text for undefined “low level presence” of unapproved GE products, already agreed by Mexico and Canada in the TPP.

There have been about two dozen instances since the mid-1990s, when unapproved U.S. GE crops have entered into commerce. In September, Syngenta agreed to pay U.S. farmers $1.5 billion to settle lawsuits stemming from loss of export sales due to Syngenta’s U.S. commercialization of a GE corn variety unapproved in China, a major U.S. export target. The more “low level presence” provisions the USTR negotiates with government of agribusiness export targets, the less likely there will be more successful lawsuits against a biotech company for selling to U.S. farmers seeds unapproved in the targeted export markets A NAFTA “low level presence” agreement will also allow the U.S. and Canada to export GE products to Mexico unapproved for import into Mexico. According to the USDA, Mexico imported about $2.3 billion of corn, much of it GE, in 2015.

(Mexico bans the planting of GE corn because the country is the global center of biodiversity for developing corn hybrids. In January 2017, a Mexican court upheld a 2013 ban. However, the smuggling of GE corn seed into Mexico has resulted in the contamination of Mexican corn landraces by pollen from the smuggled seed. Strangely, a word search of the NAFTA legal text finds no results for “smuggling,” i.e. trade in illegal goods.)

Researchers have shown that Mexican farmers, with a modest amount of Mexican government financial support, can supply all the corn Mexico needs without depending on U.S. GE corn exports, whether approved or not. Although the Mexican government has not made its negotiating objectives public, according to Reuters, the objectives include unfettered market access for industrial and agriculture goods, and regulatory harmonization.  These objectives indicate that the Mexican government will continue to allow U.S. agribusiness to export corn and other products at below the cost of production, an unfair trade practice known as dumping, and include among those products GE products unapproved in Mexico.

As agricultural technologies become more scientifically complex, the re-organization of the U.S. Department of Agriculture has subordinated science based offices to the authority of trade and marketing offices. IATP informed the National Academy for Public Administration (NAPA), charged by Congress to advise USDA on its reorganization, that reducing the independent authority of scientific agencies would damage the international credibility of U.S. food and agricultural regulations. NAPA agreed but the Trump administration agreed with agribusiness that the traditional USTR mantra of supporting “science-based” standards could be best served by having the heads of scientific agencies be subject to overruling by trade agencies.

The Trump administration demotion of scientific agencies in the USDA and elsewhere in the U.S. government could result in great harm to U.S. farmers and to the reputation and sales of U.S. agricultural exports. In a September report on the environmental and public health risks of the new GE engineering techniques, Test Biotech writes, “The companies operating in this sector emphasize that the new methods of genetic engineering are more precise in making changes in the genome, with fewer unintended effects than with previous technology. These arguments are directed at economic interests: The new methods are presented as being so safe that they can be marketed without needing to undergo risk assessment or comply with labelling requirements. In fact, the success rate [of plant and animal modifications] fluctuates strongly according to method, type of cell and organism – an unmistakable sign that the methods are still associated with many risks and uncertainties.”

The failure of the GE techniques to produce their intended effects in many cases, or GE techniques that produce unintended effects may result in toxins and reduction of species that are crucial to the web of biodiversity that underlies the natural resource base of agriculture. NAFTA country agribusiness interests believe they are best served by legal short cuts to minimize pre-market and post-market demonstration of GE product safety. Soaring GE exports, rather than fulfilling the Hippocratic oath to “do no harm,” could meet the fate of Icarus, who fell from the sky after his hubristic flight technology, feathers molded by wax, got too close to the sun.