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This article was originally published by Food Tank. A version of this article appears in Spanish on Pie de Página.

Editor's note: Following the publication of this article, the USMCA panel reversed two of its more controversial decisions, granting Mexico a belated extension on its formal written response and withdrawing the exclusions from its invitation to Friends of the Earth for comments.

The Christmas holidays in the United States are nothing compared to the celebrations in Mexico. And even less so compared to those in the indigenous southern state of Oaxaca, where I’m lucky enough to be spending the holidays. Schools and government offices closed December 15 and continue until January 8. The celebrations are non-stop.

Religious and civic processions known as calendas, with giant puppets and marching bands, shut down traffic. The saints do indeed come marching in. One after another—the Virgen of Guadalupe, Nuestra Señora de la Soledad—is feted with a public celebration. Nativity scenes cover the city. There is even a Oaxaca Radish Festival December 23 when elaborate scenes and figures are carved from giant radishes in an annual competition dating back 126 years. The mezcal flows freely all the way through New Year’s Eve to Three Kings Day January 6.

The Three Kings brought gifts, but the Three Panelists empowered to settle the ongoing trade dispute between the U.S. and Mexico over genetically modified corn—Christian Häberli of Switzerland, Hugo Perezcano Díaz of Mexico and Jean E. Kalicki from the U.S.—seem not to be in the same festive spirit.

After weeks of delays, the U.S. written case in the U.S.-Mexico-Canada Agreement (USMCA) dispute was finally submitted, finalized, and translated, with 70 pages and 139 annexes. It took until early December because Mexico demanded an official translation, not a machine version. Fair enough; there is a lot riding on the case.

Before the holidays, the panelists also delivered belated responses to non-governmental groups that had, following USMCA guidelines, written letters requesting “leave” to submit formal ten-page comments to the panel. Some 13 NGOs sent letters supporting Mexico’s defense, as the Institute for Agriculture and Trade Policy (IATP) documented. So did the biotech industry association BIO. IATP put in a request, and I did, too, in my capacity as a Tufts University senior research fellow.

On December 15, fully three weeks after their promised November 21 deadline (as outlined in the USMCA guidelines), the panel notified us that BIO would be invited to submit comments and 10 of the 13 NGOs were invited as well. The USMCA’s secretariat published the panel’s decisions and rationale (which at this writing was “Pending for Review”). They are slightly encouraging, but also potentially worrisome.

It is a good sign that the panel invited 10 NGOs to submit comments supporting Mexico’s defense. The U.S. reportedly recommended it accept none of them, only the one from the biotech industry. The Mexican government supported all the submissions, including BIO’s, and the panel fortunately took a more open approach. Those comments will provide a breadth and depth of information and analysis that could certainly help the panel in its deliberations.

I was not invited to submit comments on the case. Neither were the National Farmers Union of Canada or Farm Action of the U.S. They could have offered a useful farmers’ voice, arguing that Mexico’s GM corn restrictions represent a market opportunity, not a loss, for U.S. and Canadian farmers, who could earn 20 percent higher prices for their exports by switching to non-GM corn. In other words, Mexico’s GM corn restrictions might not hurt U.S. farmers but give them higher value for their corn exports. I would have presented data to support that claim, as I wrote a year ago.

The USMCA panel gave no substantive reasons for rejecting our petitions to provide formal comments, but the exclusion suggests that they may be accepting as given the U.S. claim that Mexico’s GM corn restrictions have a negative trade impact. No questions asked, apparently.

A more worrisome sign came in one of the letters of acceptance. In its response inviting Friends of the Earth (FOE) to submit comments on the science justifying Mexico’s concerns about the safety of GM corn in its tortillas, the panel stipulated that such comments must:

“exclude any discussion of ‘glyphosate-based herbicides and Bt endotoxins,’ which is a factual issue not before this Panel, and focusing solely on the ‘human health and environmental impacts of the GM white corn.'”

Exclude what? Those are the main human health concerns.

Bt endotoxins are one of the two main forms of genetic modification in corn, inserting a bacteria into the corn genome to kill the European corn borer and other pests. As their letter outlines, FOE’s submission would present a raft of new evidence that the Bt endotoxin, which acts on the gut of the corn borer, may well affect the guts of organisms that consume genetically-modified Bt corn. With huge increases in recent years in Mexico and the U.S. in gut-related diseases, from Crohn’s to leaky-gut, what could be more germane to questions of human health?

Perhaps only the possible residues of glyphosate sprayed liberally on the other variety of GM corn engineered to tolerate Roundup and other glyphosate-based herbicides. Residues are a proven problem and much recent evidence links low-levels of exposure over long periods of time to kidney, liver, and other health problems.

Most GM white corn from the U.S.—which is not the familiar sweet corn—has both traits, so most GM corn coming into Mexico may present risks from both Bt and glyphosate residues. Indeed, both have been found in tortillas and other corn-based consumer products in Mexico.

How is the panel going to assess Mexico’s claim that it is taking precautionary measures to protect public health if those risks are excluded from the outset? One hopes that the panel misunderstood some of the technical language in FOE’s letter. If not, the restriction exhibits either a profound misunderstanding of the science of GMOs or a systemic bias that excludes the main health risks under discussion, accepting as given the U.S. stance that GMOs are “substantially equivalent” to their conventional counterparts, so no further study is needed.

Mexico is insisting that its high levels of consumption of minimally processed corn call for precaution in the absence of scientific evidence of safety. In fact, civil society groups here recently urged the Mexican government to initiate a USMCA counter-suit against the U.S. for these reasons. Whatever the motivations, the panel’s restrictions suggest a cultural insensitivity that does not bode well for a body empowered to rule on the health, environmental, and cultural integrity of Mexico’s cherished corn culture and diet.

Speaking of cultural insensitivity, the panelists gave Mexico until only January 4 to present its written defense, two days before Three Kings. The panelists are basically demanding the government work on it during the entire elaborate Mexican Christmas season. I’m told the Mexican government asked for a two-week extension to account for the holidays, but the U.S. objected, and the panel rejected the request.

Remember, the panel itself had missed its own deadline by three weeks to deliver responses to NGOs, and it has the right to adjust the USMCA dispute calendar at its discretion.

The USMCA Secretariat, which for this dispute is administered by Mexico’s Economy Ministry, could not be reached for comment on the panel’s Scrooge-like adherence to the USMCA calendar. Why? Their auto-reply message indicated they would be closed from December 18 until January 2 for the Christmas holidays.

“Bah humbug” to all the Mexican scientists, economists, lawyers, and civil servants who will spend the holidays not in family celebrations, religious observances, or community events but scrambling to finalize Mexico’s response to a U.S. case delivered in Spanish to Mexico more than one month after the USMCA’s stated deadline.

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