The health regulation of biotech foods under the wto agreements

Journal of International Economic Law

Volumn 6, Issue 4, 2003, Pages 773-795

  Covelli, Nick ^a   Hohots, Viktor ^a  

^a NONE

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EID: 0347595273     PISSN: 13693034     EISSN: None     Source Type: Journal    
DOI: 10.1093/jiel/6.4.773     Document Type: Review

References (131)

1. World Health Organization, '20 Questions on Genetically Modified (GM) Foods', http://www.who.int/fsf/GMfood (visited 14 March 2003).
2. I b i d.
3. Scientists generally agree that there is no scientific evidence showing that foods containing GM organisms pose a threat to human health or the environment: US National Academy of Science, Genetically Modified Pest Protected Plants: Science and Regulation, 5 April 2000; OECD, Conference on New Biotechnology Food and Crops: Science, Safety and Society, 10-12 July 2001. See also D. Pruzin, 'Academics Seek U.S. PR Campaign in Lieu of Complaint Against EU GMO Ban', WTO Reporter, 13 March 2003; and S. Coffield, 'Biotechnology, Food, and Agriculture Disputes, or Food Safety and International Trade (Part 1)' 26 Canada-United States Law Journal 233 (2000), at 235; C. Correa, 'Implementing National Public Health Policies in the Framework of the WTO Agreements' 5 Journal of World Trade 89 (2000), at 103.
4. Scientists generally agree that there is no scientific evidence showing that foods containing GM organisms pose a threat to human health or the environment: US National Academy of Science, Genetically Modified Pest Protected Plants: Science and Regulation, 5 April 2000; OECD, Conference on New Biotechnology Food and Crops: Science, Safety and Society, 10-12 July 2001. See also D. Pruzin, 'Academics Seek U.S. PR Campaign in Lieu of Complaint Against EU GMO Ban', WTO Reporter, 13 March 2003; and S. Coffield, 'Biotechnology, Food, and Agriculture Disputes, or Food Safety and International Trade (Part 1)' 26 Canada-United States Law Journal 233 (2000), at 235; C. Correa, 'Implementing National Public Health Policies in the Framework of the WTO Agreements' 5 Journal of World Trade 89 (2000), at 103.
5. Scientists generally agree that there is no scientific evidence showing that foods containing GM organisms pose a threat to human health or the environment: US National Academy of Science, Genetically Modified Pest Protected Plants: Science and Regulation, 5 April 2000; OECD, Conference on New Biotechnology Food and Crops: Science, Safety and Society, 10-12 July 2001. See also D. Pruzin, 'Academics Seek U.S. PR Campaign in Lieu of Complaint Against EU GMO Ban', WTO Reporter, 13 March 2003; and S. Coffield, 'Biotechnology, Food, and Agriculture Disputes, or Food Safety and International Trade (Part 1)' 26 Canada-United States Law Journal 233 (2000), at 235; C. Correa, 'Implementing National Public Health Policies in the Framework of the WTO Agreements' 5 Journal of World Trade 89 (2000), at 103.
6. Scientists generally agree that there is no scientific evidence showing that foods containing GM organisms pose a threat to human health or the environment: US National Academy of Science, Genetically Modified Pest Protected Plants: Science and Regulation, 5 April 2000; OECD, Conference on New Biotechnology Food and Crops: Science, Safety and Society, 10-12 July 2001. See also D. Pruzin, 'Academics Seek U.S. PR Campaign in Lieu of Complaint Against EU GMO Ban', WTO Reporter, 13 March 2003; and S. Coffield, 'Biotechnology, Food, and Agriculture Disputes, or Food Safety and International Trade (Part 1)' 26 Canada-United States Law Journal 233 (2000), at 235; C. Correa, 'Implementing National Public Health Policies in the Framework of the WTO Agreements' 5 Journal of World Trade 89 (2000), at 103.
7. Scientists generally agree that there is no scientific evidence showing that foods containing GM organisms pose a threat to human health or the environment: US National Academy of Science, Genetically Modified Pest Protected Plants: Science and Regulation, 5 April 2000; OECD, Conference on New Biotechnology Food and Crops: Science, Safety and Society, 10-12 July 2001. See also D. Pruzin, 'Academics Seek U.S. PR Campaign in Lieu of Complaint Against EU GMO Ban', WTO Reporter, 13 March 2003; and S. Coffield, 'Biotechnology, Food, and Agriculture Disputes, or Food Safety and International Trade (Part 1)' 26 Canada-United States Law Journal 233 (2000), at 235; C. Correa, 'Implementing National Public Health Policies in the Framework of the WTO Agreements' 5 Journal of World Trade 89 (2000), at 103.
8. See Coffield, above n 3, at 236.
9. The legislative framework consists of Directives 90/220/EEC and 2001/18/EC, and EC Regulations 258/97, 1139/98, 49/2000, and 50/2000. For the EU's position, see Commission of the European Communities, Communication from the Commission on the Precautionary Principle (Brussels: CEC 2000). For details of the principle and on its current state, see T. O'Riordan, J. Cameron, and A. Jordan (eds), Reinterpreting the Precautionary Principle (London: Cameron & May 2001). See also D. Bodansky, 'Scientific Uncertainty and the Precautionary Principle' 33(7) Environment 4 (1991); D. Freestone and E. Hey (eds), The Precautionary Principle and International Law: The Challenge of Implementation (The Hague: Kluwer Law 1996). There is a good bibliography of other related titles online at http://www.infra.kth.se/phil/riskpage/bib3.htm (visited 6 May 2003).
10. The legislative framework consists of Directives 90/220/EEC and 2001/18/EC, and EC Regulations 258/97, 1139/98, 49/2000, and 50/2000. For the EU's position, see Commission of the European Communities, Communication from the Commission on the Precautionary Principle (Brussels: CEC 2000). For details of the principle and on its current state, see T. O'Riordan, J. Cameron, and A. Jordan (eds), Reinterpreting the Precautionary Principle (London: Cameron & May 2001). See also D. Bodansky, 'Scientific Uncertainty and the Precautionary Principle' 33(7) Environment 4 (1991); D. Freestone and E. Hey (eds), The Precautionary Principle and International Law: The Challenge of Implementation (The Hague: Kluwer Law 1996). There is a good bibliography of other related titles online at http://www.infra.kth.se/phil/riskpage/bib3.htm (visited 6 May 2003).
11. The legislative framework consists of Directives 90/220/EEC and 2001/18/EC, and EC Regulations 258/97, 1139/98, 49/2000, and 50/2000. For the EU's position, see Commission of the European Communities, Communication from the Commission on the Precautionary Principle (Brussels: CEC 2000). For details of the principle and on its current state, see T. O'Riordan, J. Cameron, and A. Jordan (eds), Reinterpreting the Precautionary Principle (London: Cameron & May 2001). See also D. Bodansky, 'Scientific Uncertainty and the Precautionary Principle' 33(7) Environment 4 (1991); D. Freestone and E. Hey (eds), The Precautionary Principle and International Law: The Challenge of Implementation (The Hague: Kluwer Law 1996). There is a good bibliography of other related titles online at http://www.infra.kth.se/phil/riskpage/bib3.htm (visited 6 May 2003).
12. The legislative framework consists of Directives 90/220/EEC and 2001/18/EC, and EC Regulations 258/97, 1139/98, 49/2000, and 50/2000. For the EU's position, see Commission of the European Communities, Communication from the Commission on the Precautionary Principle (Brussels: CEC 2000). For details of the principle and on its current state, see T. O'Riordan, J. Cameron, and A. Jordan (eds), Reinterpreting the Precautionary Principle (London: Cameron & May 2001). See also D. Bodansky, 'Scientific Uncertainty and the Precautionary Principle' 33(7) Environment 4 (1991); D. Freestone and E. Hey (eds), The Precautionary Principle and International Law: The Challenge of Implementation (The Hague: Kluwer Law 1996). There is a good bibliography of other related titles online at http://www.infra.kth.se/phil/riskpage/bib3.htm (visited 6 May 2003).
13. Commission of the European Communities, 'GMO Products - Approved under Directive 90/220/EEC as of March 2001' http://europa.eu.int/comm/food/fs/gmo/list_author_gmo_en.pdf (visited 6 May 2003).
14. 7 Above n 1.
15. Ibid. For example, see the Austrian measures re. Corn T25 published in the Federal Official Journal 28 April 2000; the French measures re. Rapeseed Topas 19/2 published in the Official Journal 18 November 1998; Greek measures re. Rapeseed Topas 19/2 effective 8 September 1998; and, Italian measures re. Corn T25 Official Gazette, Presidential Decree of 4 August 2000.
16. Ibid. For example, see the Austrian measures re. Corn T25 published in the Federal Official Journal 28 April 2000; the French measures re. Rapeseed Topas 19/2 published in the Official Journal 18 November 1998; Greek measures re. Rapeseed Topas 19/2 effective 8 September 1998; and, Italian measures re. Corn T25 Official Gazette, Presidential Decree of 4 August 2000.
17. Ibid. For example, see the Austrian measures re. Corn T25 published in the Federal Official Journal 28 April 2000; the French measures re. Rapeseed Topas 19/2 published in the Official Journal 18 November 1998; Greek measures re. Rapeseed Topas 19/2 effective 8 September 1998; and, Italian measures re. Corn T25 Official Gazette, Presidential Decree of 4 August 2000.
18. Ibid. For example, see the Austrian measures re. Corn T25 published in the Federal Official Journal 28 April 2000; the French measures re. Rapeseed Topas 19/2 published in the Official Journal 18 November 1998; Greek measures re. Rapeseed Topas 19/2 effective 8 September 1998; and, Italian measures re. Corn T25 Official Gazette, Presidential Decree of 4 August 2000.
19. 2001/18/EC.
20. J. Kirwin, 'EU, Parliament Reach Compromise on GMO Tracing, Labeling Regulations', WTO Reporter, 27 June 2003. The new rules were adopted in a second reading vote by the European Parliament on 2 July 2003.
21. J. Kirwin, 'Odds of EU Reaching GMO Accord by Mid-October Slim, Officials Say', WTO Reporter (7 October 2002).
22. Peter W. B. Phillips and W. A. Kerr, 'Alternative Paradigms: The WTO versus the Biosafety Protocol for Trade in Genetically Modified Organisms' 34(4) Journal of World Trade 63 (2000).
23. I b i d.
24. G. Yerkey, 'U.S. Looking to Ask EU for Talks in WTO over Ban on Imports of GMO Food Products', WTO Reporter (22 October 2002).
25. Request for Consultations by the United States, European Communities - Measures Affecting the Approval and Marketing of Biotech Products, WT/DS291/1, 20 May 2003; Request for Consultations by Canada, European Communities - Measures Affecting the Approval and Marketing of Biotech Products, WT/DS292/1, 20 May 2003; Request for Consultations by Argentina, European Communities Measures Affecting the Approval and Marketing of Biotech Products, WT/DS293/1, 21 May 2003. Consultations - failed to resolve the dispute in June 2003, so the establishment of a panel in the second half of 2003 seems likely: Daniel Pruzin, 'United States to Proceed with WTO Panel Request on European GMO Limits', WTO Reporter (20 June 2003).
26. Request for Consultations by the United States, European Communities - Measures Affecting the Approval and Marketing of Biotech Products, WT/DS291/1, 20 May 2003; Request for Consultations by Canada, European Communities - Measures Affecting the Approval and Marketing of Biotech Products, WT/DS292/1, 20 May 2003; Request for Consultations by Argentina, European Communities Measures Affecting the Approval and Marketing of Biotech Products, WT/DS293/1, 21 May 2003. Consultations - failed to resolve the dispute in June 2003, so the establishment of a panel in the second half of 2003 seems likely: Daniel Pruzin, 'United States to Proceed with WTO Panel Request on European GMO Limits', WTO Reporter (20 June 2003).
27. Request for Consultations by the United States, European Communities - Measures Affecting the Approval and Marketing of Biotech Products, WT/DS291/1, 20 May 2003; Request for Consultations by Canada, European Communities - Measures Affecting the Approval and Marketing of Biotech Products, WT/DS292/1, 20 May 2003; Request for Consultations by Argentina, European Communities Measures Affecting the Approval and Marketing of Biotech Products, WT/DS293/1, 21 May 2003. Consultations - failed to resolve the dispute in June 2003, so the establishment of a panel in the second half of 2003 seems likely: Daniel Pruzin, 'United States to Proceed with WTO Panel Request on European GMO Limits', WTO Reporter (20 June 2003).
28. Request for Consultations by the United States, European Communities - Measures Affecting the Approval and Marketing of Biotech Products, WT/DS291/1, 20 May 2003; Request for Consultations by Canada, European Communities - Measures Affecting the Approval and Marketing of Biotech Products, WT/DS292/1, 20 May 2003; Request for Consultations by Argentina, European Communities Measures Affecting the Approval and Marketing of Biotech Products, WT/DS293/1, 21 May 2003. Consultations - failed to resolve the dispute in June 2003, so the establishment of a panel in the second half of 2003 seems likely: Daniel Pruzin, 'United States to Proceed with WTO Panel Request on European GMO Limits', WTO Reporter (20 June 2003).
29. GATT Secretariat, The Results of the Uruguay Round of Multilateral Trade Negotiations, The Legal Texts Marrakesh, Annex 1A, (Geneva 1994)) at 69 and 138, respectively.
30. For a general overview of the SPS Agreement, TBT Agreement, and GATT see G. Marceau and J.P. Trachtman, 'The Technical Barriers to Trade Agreement, the Sanitary and Phytosanitary Measures Agreement, and the General Agreement on Tariffs and Trade: A Map of the World Trade Organization Law of Domestic Regulation of Goods' 36(5) Journal of World Trade 811 (2002).
31. D. Roberts et al., 'The Role of Product Attributes in the Agricultural Negotiations', 17 IATRC Commissioned Paper (May 2001), at 19.
32. WTO Appellate Body Report, European Communities - Measures Concerning Meat and Meat Products (EC - Hormones) WT/DS26/AB, 16 January 1998, para 126.
33. F. MacMillan and M. Blakeney, 'Regulating GMOs: Is the WTO Agreement on Sanitary and Phytosanitary Measures Hormonally Challenged? Part 1', 6(4) International Trade Law and Regulation (2000), at 133.
34. The SPS Committee's Decision on the Implementation of Article 4 of the Agreement on the Application of Sanitary and Phytosanitary Measures elaborates on this requirement. If it appears that an SPS measure adopted on the basis of a risk assessment is, or has the potential to, constrain exports of another member, the affected member is entitled to an explanation (Article 5.8).
35. Above n 18, at ix.
36. I b i d.
37. GATT Panel Report, Thailand - Restrictions on Importation of and Internal Taxes on Cigarettes, (Thailand - Cigarette) DS10/R, 7 November 1990. Although the case dealt with Article XX(b) of the GATT, it is relevant given the similarity in the 'necessity' test in that provision and in the SPS Agreement.
38. Codex Alimentarius Commission, Report of the Fourth Session of the Codex Ad Hoc Intergovernmental Task Force on Foods Derived From Biotechnology, 11-14 March 2003, ALINORM 03/34. The Draft Principles for the Risk Analysis of Foods Derived from Modern Biotechnology are intended to provide a framework for undertaking risk analysis on the safety of GM foods. It is premised on a premarket assessment to be performed on a case-by-case basis using 'sound science'. Risk management measures for GM foods, including labels, conditions for marketing approvals, and post-market monitoring, are contemplated as long as they are 'proportional to the risk, based on the outcome of the risk assessment and, where relevant, taking into account other legitimate factors'. France has proposed that traceability should be included among the list of risk management measures. The Draft Principles also would require a responsive consultation process, consistency between the acceptable risk level for GM foods and like non-GM foods already on the market, consistent data requirements, assessment frameworks, acceptable risk levels, and communication and consultation mechanisms, and a review process based on new scientific knowledge. The Draft Recommendations for the Labelling of Foods Obtained through Certain Techniques of Genetic Modification/Genetic Engineering contain two options for consideration. The first option would require mandatory labelling when GM foods differ significantly from like non-GM foods in terms of composition, nutritional value, or intended use. The second option would require all GM foods to be labelled, as per the EU regulation. See D.E. Buckingham and P.W.B. Phillips, 'Hot Potato, Hot Potato: Regulating Products of Biotechnology by the International Community', 35(1) Journal of World Trade 1 (2001), at 5.
39. Codex Alimentarius Commission, Report of the Fourth Session of the Codex Ad Hoc Intergovernmental Task Force on Foods Derived From Biotechnology, 11-14 March 2003, ALINORM 03/34. The Draft Principles for the Risk Analysis of Foods Derived from Modern Biotechnology are intended to provide a framework for undertaking risk analysis on the safety of GM foods. It is premised on a premarket assessment to be performed on a case-by-case basis using 'sound science'. Risk management measures for GM foods, including labels, conditions for marketing approvals, and post-market monitoring, are contemplated as long as they are 'proportional to the risk, based on the outcome of the risk assessment and, where relevant, taking into account other legitimate factors'. France has proposed that traceability should be included among the list of risk management measures. The Draft Principles also would require a responsive consultation process, consistency between the acceptable risk level for GM foods and like non-GM foods already on the market, consistent data requirements, assessment frameworks, acceptable risk levels, and communication and consultation mechanisms, and a review process based on new scientific knowledge. The Draft Recommendations for the Labelling of Foods Obtained through Certain Techniques of Genetic Modification/Genetic Engineering contain two options for consideration. The first option would require mandatory labelling when GM foods differ significantly from like non-GM foods in terms of composition, nutritional value, or intended use. The second option would require all GM foods to be labelled, as per the EU regulation. See D.E. Buckingham and P.W.B. Phillips, 'Hot Potato, Hot Potato: Regulating Products of Biotechnology by the International Community', 35(1) Journal of World Trade 1 (2001), at 5.
40. The US and others believe that setting up a costly traceability system is not justified in the absence of a clear public health justification. Proponents argue that traceability is necessary to ensure food labels are accurate. See Codex Alimentarius Commission, Discussion Papers on Traceability, 4-8 March 2002, CX/FBT 02/8 and Comments Relating to the Discussion Papers on Traceability, 25-29 March 2002, CX/FBT CRD3.
41. The US and others believe that setting up a costly traceability system is not justified in the absence of a clear public health justification. Proponents argue that traceability is necessary to ensure food labels are accurate. See Codex Alimentarius Commission, Discussion Papers on Traceability, 4-8 March 2002, CX/FBT 02/8 and Comments Relating to the Discussion Papers on Traceability, 25-29 March 2002, CX/FBT CRD3.
42. I b i d.
43. S. Charnovitz, 'The World Trade Organization, Meat Hormones, and Food Safety', 41 International Trade Reporter 1781 (1997), at 1786.
44. Above n 19, at para 124, and Roberts et al., above n 18, at 25.
45. Above n 19, at para 124, and Roberts et al., above n 18, at 25.
46. Above n 19, at para 190.
47. Ibid, at para 175.
48. Ibid, at para 186. See also J. Pauwelyn, 'The WTO Agreement on Sanitary and Phytosanitary (SPS) Measures as Applied in the First Three SPS Disputes', 2 JIEL 641 (1999), at 645.
49. Ibid, at para 186. See also J. Pauwelyn, 'The WTO Agreement on Sanitary and Phytosanitary (SPS) Measures as Applied in the First Three SPS Disputes', 2 JIEL 641 (1999), at 645.
50. Above n 19, at para 187.
51. Ibid, at para 206.
52. WTO Appellate Body Report, Japan - Measures Affecting Agricultural Products (Japan - Varietals), WT/DS76/AB/R, 22 February 1999, para 84.
53. WTO Panel Report, Japan - Measures Affecting Agricultural Products (Japan - Varietals), WT/DS76/R, 27 October 1998, para 9.1.
54. WTO Appellate Body Report, Australia - Measures Affecting Importation of Salmon (Australia - Salmon), WT/DS18/AB, 20 October 1998, para 111.
55. Ibid, at paras 200-201.
56. This view is also shared by academic experts: Pruzin, above n 3.
57. G/SPS/GEN/209.
58. For another perspective on GM food labelling in the context of the WTO Agreements, see R.J. Zedalis, 'Labelling of Genetically Modified Foods: The Limits of GATT Rules', 36(2) Journal of World Trade 301 (2001). See also C. F. Runge and L. A. Jackson, 'Labelling, Trade and Genetically Modified Organisms: A Proposed Solution', 34(1) Journal of World Trade 111 (2000).
59. For another perspective on GM food labelling in the context of the WTO Agreements, see R.J. Zedalis, 'Labelling of Genetically Modified Foods: The Limits of GATT Rules', 36(2) Journal of World Trade 301 (2001). See also C. F. Runge and L. A. Jackson, 'Labelling, Trade and Genetically Modified Organisms: A Proposed Solution', 34(1) Journal of World Trade 111 (2000).
60. Above n 36, at para 199.
61. Ibid, at 186, and above n 21, at para 194.
62. This should be read in the context of Article 2.3, which uses similar language. Similar language is also used in GATT Article XX, however, given the structural differences between that provision and this one, the interpretation of the terms in Article XX cannot be imported into Article 5.5 cases: Above n 19, at para 239.
63. Ibid, at para 221.
64. Ibid, at para 235.
65. Ibid, at para 245.
66. Above n 36, at para 154.
67. Ibid, at 176-78.
68. Above n 34, at paras 107-08.
69. Above n 19, at para 109.
70. F. MacMillan and M. Blakeney, 'Regulating GMOs: Is the WTO Agreement on Sanitary and Phytosanitary Measures Hormonally Challenged? Part 2', 6(5) International Trade Law and Regulation (2000), at 164.
71. Above n 19, at para 117.
72. Ibid, at 164.
73. M. Trebilcock and R. Howse, The Regulation of International Trade (2nd edn, New York: Routledge 1999), at 164.
74. For an overview and analysis of all the issues in the SPS cases, see M. Trebilcock and J. Soloway, 'International Trade Policy and Domestic Food Safety Regulation: The Case for Substantive Deference by the WTO Dispute Settlement Body under the SPS Agreement' in D. Kennedy and J. Southwick (eds), The Political Economy of International Trade Law: Essays in Honor of Robert E. Hudec (Cambridge: Cambridge University Press 2002), at 18.
75. S. Frechette, 'Biotechnology, Food, and Agriculture Disputes, or Food Safety and International Trade (Part 2)', 26 Canada-United States Law Journal 253 (2000), at 259.
76. I b i d.
77. I bi d.
78. See Roberts et al., above n 3, at 30. For example, in EC-Asbestos, Canada originally complained that the French ban violated the SPS and TBT Agreements and GATT: WTO Panel Report, European Communities - Measures Affecting Asbestos and Asbestos-Containing Products (EC - Asbestos), WT/DS135/R, 18 September 2000, para 1.2.
79. See Roberts et al., above n 3, at 30. For example, in EC-Asbestos, Canada originally complained that the French ban violated the SPS and TBT Agreements and GATT: WTO Panel Report, European Communities - Measures Affecting Asbestos and Asbestos-Containing Products (EC - Asbestos), WT/DS135/R, 18 September 2000, para 1.2.
80. Only the AB in EC - Asbestos and EC - Sardines and the panel in EC - Sardines has had a chance to interpret and apply the Agreement. In EC -Asbestos, though, the AB only had the opportunity to rule on the definition of 'technical regulation'. Once it found that the panel had erred in holding that the asbestos ban was not a technical regulation and the TBT Agreement did not apply, the AB decided that it did not have enough factual information upon which to consider whether the ban was consistent with the Agreement: See WTO Appellate Body Report, European Communities - Measures Affecting Asbestos and Asbestos-Containing Products (EC - Asbestos), WT/DS135/AB/R, 12 March 2001, WTO Appellate Body Report, European Communities - Trade Description of Sardines (EC - Sardines), WT/DS23/AB/R, September 2002 and WTO Panel Report, European Communities - Trade Description of Sardines (EC - Sardines), WT/DS231/R, 29 May 2002.
81. Only the AB in EC - Asbestos and EC - Sardines and the panel in EC - Sardines has had a chance to interpret and apply the Agreement. In EC -Asbestos, though, the AB only had the opportunity to rule on the definition of 'technical regulation'. Once it found that the panel had erred in holding that the asbestos ban was not a technical regulation and the TBT Agreement did not apply, the AB decided that it did not have enough factual information upon which to consider whether the ban was consistent with the Agreement: See WTO Appellate Body Report, European Communities - Measures Affecting Asbestos and Asbestos-Containing Products (EC - Asbestos), WT/DS135/AB/R, 12 March 2001, WTO Appellate Body Report, European Communities - Trade Description of Sardines (EC - Sardines), WT/DS23/AB/R, September 2002 and WTO Panel Report, European Communities - Trade Description of Sardines (EC - Sardines), WT/DS231/R, 29 May 2002.
82. Only the AB in EC - Asbestos and EC - Sardines and the panel in EC - Sardines has had a chance to interpret and apply the Agreement. In EC -Asbestos, though, the AB only had the opportunity to rule on the definition of 'technical regulation'. Once it found that the panel had erred in holding that the asbestos ban was not a technical regulation and the TBT Agreement did not apply, the AB decided that it did not have enough factual information upon which to consider whether the ban was consistent with the Agreement: See WTO Appellate Body Report, European Communities - Measures Affecting Asbestos and Asbestos-Containing Products (EC - Asbestos), WT/DS135/AB/R, 12 March 2001, WTO Appellate Body Report, European Communities - Trade Description of Sardines (EC - Sardines), WT/DS23/AB/R, September 2002 and WTO Panel Report, European Communities - Trade Description of Sardines (EC - Sardines), WT/DS231/R, 29 May 2002.
83. See Panel Report, EC - Sardines, above n 59, at para 7.60. Note, however, that this decision applied specifically to Article 2.4.
84. See Appellate Body Report, EC-Asbestos, above n 59, and Appellate Body Report, EC - Sardines, above n 59.
85. See Roberts a al., above n 18, at 30.
86. See Appellate Body Report, EC - Asbestos, above n 59, at para 75.
87. See Appellate Body Report, EC - Sardines, above n 59, at paras 180-85.
88. Ibid, at paras 190-91.
89. See Panel Report, EC - Sardines, above n 59, at para 7.113 and 7.118. Whether an objective is legitimate must be examined and determined by the panel or AB: See WTO Appellate Body Report, EC - Sardines, above n 59, at para 286.
90. See Panel Report, EC - Sardines, above n 59, at para 7.113 and 7.118. Whether an objective is legitimate must be examined and determined by the panel or AB: See WTO Appellate Body Report, EC - Sardines, above n 59, at para 286.
91. This differs from Article 3.1 of the SPS Agreement, which uses 'based on'. The AB in EC - Sardines did not consider it necessary to decide if these terms have an identical meaning. The technical regulation in dispute and the international standards were 'manifestly contradictory', so the standard was not 'a basis for' the EU regulation.
92. In Appellate Body Report, EC - Sardines, above n 59, at para 310, the AB ruled that an inconsistency with Article 2.4 does not require the finding of an inconsistency under Article 2.5. The latter would be relevant after a finding of inconsistency with Article 2.2.
93. See Roberts et al., above n 18, at 33.
94. I b i d.
95. See Buckingham and Phillips, above n 25, at 12.
96. See Panel Report, EC - Sardines, above n 59, at paras 7.61-139.
97. See Appellate Body Report, EC - Sardines, above n 59, at paras 231-32.
98. Ibid, at paras 245 and 248.
99. Ibid, at para 257.
100. See Panel Report, EC - Sardines, above n 61, at para 7.66.
101. Above n 19, at para 275.
102. An existing EC regulation requiring labelling of foods with traceable amounts of DNA from GM soya or corn has been challenged in the TBT Committee, with Canada and others questioning the need for the regulation: U. Grote and S. Kirchhoff, 'Environmental and Food Safety Standards in the Context of Trade Liberalization: Issues and Options', Center for Development Research (June 2001), at 32.
103. WTO Panel Report, European Communities - Measures Concerning Meat and Meat Products (EC - Hormones), WT/DS26/R/USA, 18 August 1997, para 8.39.
104. Ibid, at para 8.36.
105. Ibid, at paras 8.30 and 8.38.
106. Ibid, at para 8.42. As it turned out, the panel found a violation of the SPS Agreement and therefore did not examine whether the EC measure also violated GATT (or, for that matter, whether Article XX(b) applied).
107. The EC - Asbestos case is exceptional because the panel erred in finding that neither the SPS nor TBT Agreement applied, and went straight into an examination of the claims under the GATT.
108. WTO Appellate Body Report, United States - Standards for Reformulated and Conventional Gasoline (US - Gasoline) WT/DS2/AB/R, 26 April 1996, section IV.
109. 87 Above n 24.
110. Above n 54, at 140.
111. See Panel Report, EC -Asbestos, above n 59, at para 8.4-5.
112. See Appellate Body Report, EC-Asbestos, above n 59, at para 76. If the SPS Agreement had applied, then the TBT Agreement would not have. Canada seems to have pushed its TBT claim harder than its SPS claim, which may explain why the SPS Agreement was not considered by the panel.
113. See Appellate Body Report, EC - Asbestos, above n 59, at paras 163-75.
114. See Panel Report, EC - Asbestos, above n 59, at para 8.186 and 8.194.
115. Ibid, at paras 8.201-05.
116. Ibid, at paras 8.227-29.
117. Ibid, at paras 8.234-40.
118. Activists seem to see the ruling as potentially impacting on GM regulation: 'WTO Ruling on Asbestos Welcomed by Environmentalists, but Lawyers Doubtful', WTO Reporter, 16 June 2000.
119. Convention on Biological Diversity, http://www.biodiv.org/biosafety (visited 3 October 2002).
120. See Buckingham and Phillips, above n 25, at 10. The Protocol enters into force 90 days after the 50th country has ratified it. On 13 June 2003, Falau became the 50th nation to have done so: Daniel Pruzin, 'Cartagena Protocol on Biosafety to Enter into Force Following Ratification by Palau', WTO Reporter (17 June 2003).
121. See Buckingham and Phillips, above n 25, at 10. The Protocol enters into force 90 days after the 50th country has ratified it. On 13 June 2003, Falau became the 50th nation to have done so: Daniel Pruzin, 'Cartagena Protocol on Biosafety to Enter into Force Following Ratification by Palau', WTO Reporter (17 June 2003).
122. In support of this conclusion, see S. Safrin, 'Treaties in Collision? The Biosafety Protocol and the World Trade Organization Agreements', 96 American Journal of International Law 606 (2002). For the contrary view, see N. Bernasconi-Osterwalder, 'The Cartegena Protocol on Biosafety: A Multilateral Approach to Regulate GMOs', in E. Brown Weiss and J.H. Jackson (eds), Reconciling Environment and Trade (Ardsley: Transnational 2001).
123. In support of this conclusion, see S. Safrin, 'Treaties in Collision? The Biosafety Protocol and the World Trade Organization Agreements', 96 American Journal of International Law 606 (2002). For the contrary view, see N. Bernasconi-Osterwalder, 'The Cartegena Protocol on Biosafety: A Multilateral Approach to Regulate GMOs', in E. Brown Weiss and J.H. Jackson (eds), Reconciling Environment and Trade (Ardsley: Transnational 2001).
124. M.E. Bredahl and N. Kalaitzandonakes, 'Biotechnology: Can We Trade It?', 2(1) Estey Centre Journal for Law and Economics in International Trade 75 (2001), at 81. For a discussion on the relationship between the Protocol and WTO law, see B. Eggers and R. Mackenzie, 'The Cartagena Protocol on Biosafety', 3 JIEL 522 (2000), at 539.
125. M.E. Bredahl and N. Kalaitzandonakes, 'Biotechnology: Can We Trade It?', 2(1) Estey Centre Journal for Law and Economics in International Trade 75 (2001), at 81. For a discussion on the relationship between the Protocol and WTO law, see B. Eggers and R. Mackenzie, 'The Cartagena Protocol on Biosafety', 3 JIEL 522 (2000), at 539.
126. 101 Above n 13, at 71.
127. Ibid, at 73.
128. Including Coffield, above n 3, Eggers and Mackenzie, above n 100, Phillips and Kerr, above n 12, and Safrin, above n 99.
129. Including Coffield, above n 3, Eggers and Mackenzie, above n 100, Phillips and Kerr, above n 12, and Safrin, above n 99.
130. Including Coffield, above n 3, Eggers and Mackenzie, above n 100, Phillips and Kerr, above n 12, and Safrin, above n 99.
131. Including Coffield, above n 3, Eggers and Mackenzie, above n 100, Phillips and Kerr, above n 12, and Safrin, above n 99.