The European Communities Biotech Dispute - How The Wto Fails To Consider Cultural PDF

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Texas International Law Journal

Spring 2007
Comment
*345 THE EUROPEAN COMMUNITIES BIOTECH DISPUTE: HOW THE WTO FAILS TO CONSIDER CULTURAL
FACTORS IN THE GENETICALLY MODIFIED FOOD DEBATE
Laylah Zurek [FNd1]
Copyright (c) 2007 Texas International Law Journal; Laylah Zurek
Summary
I.
II.
Introduction
Introduction to Genetically Modified Foods
A. Genetically Modified Foods
III.
IV.
346
347
347
B. Potential Risks and Benefits of

Genetically Modified foods
348
Attitudes About Genetically Modified Foods
350
A. United States
350
B. Europe
351
Case Discussion
352
A. Overview
352
B. Governing WTO Agreements

and International Law
353
1. The General Moratorium
354
2014 Thomson Reuters. No Claim to Orig. US Gov. Works.
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V.
VI.
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2. Specific-Product Moratoria
355
3. Member State Bans
356
Case Analysis
357
A. The Opinion Fails to Consider

Other Values
357
1. Bovine Spongiform Encephalopathy and the Distrust of Government

Regulations
358
2. The Precautionary Principle
359
3. Food as a Distinct Cultural Value

in Europe
360
B. WTO Process Lacks the Institutional Capacity to Consider Non-Market

Values
361
C. Why Europeans Will Resist
363
1. General Resistance to WTO Cultural Domination
363
2. European Resistance to WTO

Cultural Domination
364
D. Labeling as an Alternative
366
Conclusion
368
*346 I. Introduction
Tell me what kind of food you eat, and I will tell you what kind of man you are. [FN1]
In 2003, the United States, joined by Canada and Argentina (the Complaining Parties), brought a claim to the World
Trade Organization (WTO) that the European Communities' (EC) strict regulation of genetically modified (GM) foods
violated trade obligations. [FN2] In 2006, the WTO dispute settlement body agreed with the Complaining Parties that the
EC had not adequately justified its restrictions on genetically modified foods. [FN3] However, unlike many international
matters before the WTO, [FN4] decisions about food and food choice cannot easily be resolved, and it is likely that this
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dispute will not end with this decision. [FN5] Food has complex social and *347 cultural meanings integral to the way
legal decisions about food are made and enforced. After all, we are what we eat.
This Comment contends that the decision in EC Biotech fails to account for the cultural significance of food and,
therefore, will not resolve the controversy over GM food regulation. It identifies cultural factors that will make it difficult for the EC to comply with the WTO ruling. The Comment then proposes mandatory labeling as an alternative solution advancing free market principles while respecting cultural considerations. Part II provides an overview of GM
foods, including potential risks and benefits. Part III lays out the respective United States and European Union regulation of GM foods, outlining the historical development of GM foods and the attitudes underlying the differences in regulation. Part IV discusses the EC Biotech decision. In particular, it looks at the Panel finding that the EC violated the
WTO Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) [FN6] and at the EC's
claim that it should be allowed to impose stricter measures on the regulation of GM foods.
Part V evaluates the adequacy of the WTO's response to European arguments for stricter regulation of GM foods and
considers the likelihood that the decision will resolve the dispute between the United States and the European Union. The section assesses the Report in light of the underlying cultural aspects of European regulation, and it contends
that the WTO fails to adequately account for cultural values and therefore will have difficulty implementing the decision. The Comment concludes by defending labeling as an alternative resolution--one that better accounts for cultural
values while encouraging United States' access to the European Market.
II. Introduction to Genetically Modified Foods
A. Genetically Modified Foods

In order to understand the controversy, it is important to know how GM foods are created and why Europeans might
be wary of them. Genetically modified foods are derived from organisms whose DNA has been altered through the insertion of genes from one organism into a second organism in order to suppress, encourage, or otherwise alter particular
genetic traits in the second organism. [FN7] One example of a genetic modification is the creation of an herbicide-resistant cotton plant--a gene increasing herbicide resistance is isolated in one plant, removed, replicated, and then *348 reinserted into the DNA of the target plant. [FN8] The process often uses bacteria to carry the selected DNA and antibiotic
marker genes to identify altered cells. Genes can be transferred between plants, animals, or microorganisms--both plants
and animals have been genetically modified. [FN9]
GM food comes primarily from four crops that dominate GM agriculture: soybeans, maize (corn), cotton, and canola.
[FN10] Within commercial GM crops, the predominant modification is herbicide resistance, followed by insect resistance. [FN11] Other modifications include viral and fungal resistance, improved ability to resist environmental stresses,
acceleration of growth time, and reduction in the maturation time of trees. [FN12] The above traits affect plant growth, or
input, characteristics. [FN13] Traits affecting the characteristics of the food itself, or output characteristics, are less
common [FN14] and have had less commercial viability. [FN15]
B. Potential Risks and Benefits of Genetically Modified Foods
Much of the debate over GM food regulation stems from the tension between the potential risks and benefits of GM
foods. Concerns over human health and the environment have driven both sides of the argument: while GM foods may
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pose unknown risks to human health, they may also be the key to feeding a growing world population. [FN16]
Because GM foods are relatively new and the techniques that create them are complex, fears abound that GM foods
may carry serious risks both to human health and to the environment. Two human health risks associated with GM foods
are potential allergies to novel proteins that appear in the GM food [FN17] and the risk that *349 antibiotic resistance
could be spread through GM organisms. [FN18] In addition, there are serious environmental concerns regarding the release of genetically modified organisms (GMOs) into the environment. [FN19] These concerns include negative and unintended consequences to the biosphere, as demonstrated in U.S. field trials. [FN20]
Balanced against the risks are the potential benefits of GM foods, [FN21] including reduced usage of pesticides and
herbicides, better yields, foods with better nutritional value, foods altered to be less allergenic, production of vaccines
within foods, and even the production of alternative fuels. [FN22] These potential benefits offer strong justifications for
further research by biotechnology companies. [FN23] However, the difficulty remains in determining how to assess the
potential benefits and risks and whether regulation can adequately manage the risks. [FN24]
As a result, two approaches to GM food regulation have emerged from the different opinions concerning the role science should play in determining food safety. The first approach assumes that GM foods are safe after limited testing because they are equivalent to foods that have not been genetically altered. The *350 second approach assumes that more
extensive testing on a broader scale is required to prove the safety of GM foods. These competing approaches to regulation underlie the different positions in EC Biotech.
III. Attitudes About Genetically Modified Foods
A. United States
Within the United States, GM foods have met with comparatively little opposition because trust in the government's
regulation of food is strong, although not absolute. [FN25] In general, there has been limited response to GM foods in the
marketplace. The United States is the largest producer of GM foods, and estimates of the amount of GM food in the domestic food supply are quite high. [FN26] Canada and Argentina also produce significant percentages of GM food.
[FN27] None of the three nations requires any traceability [FN28] or specific labeling [FN29] for GM foods. Instead, the
modified foods are treated in the same manner as unmodified foods on the basis that they are substantially similar to
unmodified products. [FN30] In the United States, the adaptation of existing regulatory rules to biotechnology has resulted in gaps that allow GM foods to pass into the food supply: once GM food has left the grower, no regulation exists requiring identification of the GM food, nor is there any traceability of the food. [FN31]
The StarLink corn [FN32] incident demonstrated weaknesses in the U.S. regulatory system--providing an example of
the unexpected migration of GM foods into the human food supply, even when a scientific basis exists for a regulatory
decision to keep the GM food from human consumption. [FN33] Due to questions about the *351 allergenicity of an
altered protein in the corn, GM corn was approved for animal feed but not for human consumption. [FN34] However,
subsequent testing by an anti-GM organization found the GM corn to be present in Kraft taco shells on grocery store
shelves. [FN35] Aventis voluntarily withdrew the corn, [FN36] but it had already been consumed domestically and
shipped abroad. [FN37] While subsequent research failed to show any allergic reaction, the fact remains that the product
had not been proven safe or approved for human consumption. [FN38]
Mistakes such as these cast doubt on the ability of the U.S. government to properly regulate GM foods. [FN39] Out-
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side the United States, such events have led to calls for labeling and traceability of GM products, particularly from trade
partners that regulate GM products more stringently. [FN40]
B. Europe
Since the late 1990s, GM food regulation by the European Union, and many Member States, has become increasingly
stringent. Thus, the European Union has been caught between domestic pressure to regulate and international trade pressure not to regulate at the same time.
The regulatory scheme for approval of GM foods for sale within the European Union has always been much stricter
than in the United States. [FN41] However, the gap has widened since an authorization process for GM foods was established by the European Union. [FN42] In addition, political pressure from citizens of Member States subsequently led the
EU to reevaluate its procedures for accepting GM foods in an attempt to harmonize different regulatory regimes within
the EU. [FN43] The EU did not *352 approve genetically modified food from 1999 to 2003, while they were determining
the risks and benefits of such food. [FN44] Finally, the EU passed a directive that made labeling mandatory for all GM
foods that contain more than 0.9% of GM ingredients and GM foods that contain more than 0.5% of GM ingredients
from GMOs not approved by the EU. [FN45] In addition, Regulation 1829/2003 centralized authorization of GM food
and crops in the European Food Safety Authority (EFSA), which is responsible for the scientific assessment of genetically modified food and feed. [FN46]
These labeling and traceability requirements allow for increased citizen choice, and, this in turn, may alleviate some
of the pressure to ban GM foods, although it is still unclear how easy it will be for GM foods to be approved in practice.
[FN47] The EC's policies reflect an uncertain compromise between the concerns of its citizens and those of its trading
partners, such as the United States, and now the WTO. Resistance to GM foods continues, accompanied by claims that
the EC was motivated by market concerns to push the regulations on Member States without having satisfactorily resolved health concerns. [FN48]
IV. Case Discussion
A. Overview
In 1998, the European Communities responded to political pressure for stricter regulation of GM foods by reviewing
their approval processes; no approvals of biotech products were completed during the review and six individual Member
States implemented restrictions on certain GM foods already approved by the EC. [FN49] On May 13, 2003, the United
States and Canada requested WTO consultations with the European Communities, claiming that the EC and individual
Member State actions regarding GM foods were inconsistent with WTO trade agreements. [FN50] The *353 United
States and Canada, joined by Argentina, brought a complaint claiming that: 1) the EC's failure to approve any GM food
for five years was a de facto moratorium violating obligations under WTO Agreements; [FN51] 2) a moratorium on approvals of specific products also existed, in violation of WTO Agreements; [FN52] 3) certain EC Member States had imposed limits on specific biotech products already approved by the EC, violating EC obligations under the WTO Agreements. [FN53] On August 29, 2003, after consultations failed to resolve the issues, [FN54] the WTO established a panel
to consider the complaints. [FN55] This Panel issued an interim decision in February 2006, after extended delays due to
the complexity of the case. [FN56] In late 2006, the final Panel decision was circulated and then accepted by the members of the WTO. [FN57]
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B. Governing WTO Agreements and International Law

The United States, Canada, and Argentina (the Complaining Parties) alleged that the EC general moratorium,
product-specific moratorium, and Member State bans of GM products were inconsistent with the SPS Agreement which
requires measures be based on scientific principles and supported by scientific evidence. [FN58] Canada and Argentina
also alleged that the moratoria and bans were inconsistent with the Agreement of Technical Barriers to Trade (TBT
Agreement) and the General Agreement on Tariffs and Trade (GATT). [FN59]
In response, the EC asserted that the general moratorium did not exist and argued that the lack of approvals did not
qualify as a formal or informal measure *354 under the SPS Agreement regulations on how measures can be applied.
[FN60] Next, the EC argued that failure to complete product-specific applications did not qualify as measures either.
[FN61] As to the Member State bans, the EC argued that because they were temporary, they did not violate WTO obligations. [FN62]
Additionally, the EC claimed that the contested moratoria and bans primarily addressed environmental, and not
health, concerns; consequently, they fall outside of the SPS Agreement. [FN63] According to the EC, the Cartagena Protocol on Biosafety (Cartagena Protocol) applies instead. [FN64] It further contended that even if WTO agreements apply,
they should be interpreted in conjunction with, rather than separate from, other sources of international law. Finally, the
EC argued that the appropriate WTO agreement is the TBT Agreement, not the SPS Agreement. [FN65]
The decision found that the de facto moratoria and bans were measures as defined by the WTO and that the measures
fell within the SPS Agreement. [FN66] The Panel did not consider the EC claim that Cartagena Protocol should govern.
[FN67] Additionally, the Panel considered only one of the GATT claims by Canada and Argentina, and none of the TBT
claims was successful. [FN68]
1. The General Moratorium
The Complaining Parties alleged that the EC maintained a general moratorium on biotech products between June
1999 and August 2003 (the latter being the date the Panel was established), in violation of the SPS Agreement. [FN69]
While under the SPS Agreement WTO Members are allowed to maintain independent approval procedures for biotech
products, these procedures must be conducted without undue delay, which the Complaining Parties claim the EC failed to
do in creating a de facto moratorium on approvals of GM foods. [FN70]
*355 The EC claimed that the moratorium did not exist and would not constitute a measure under the SPS Agreement
if it did exist. [FN71] The Panel disagreed, finding that a moratorium on the approval of biotech products did indeed exist between June 1998 and August 2003, and that the moratorium violated Article 8 and Annex C(1)(a) of the SPS Agreement. [FN72] Because the moratorium had ended by the time the Panel issued its Reports, the Panel did not make a recommendation regarding the moratorium. [FN73]
2. Specific-Product Moratoria
The Complaining Parties also claimed that undue delays in approval of specific GM products violated the SPS Agreement. [FN74] The Panel found that EC actions violated Article 8 and Annex C(1)(a) of the SPS Agreement by allowing
unnecessary delays in the approvals of two of the twenty-seven products specified by the Complaining Parties. [FN75]
As a result, the Panel recommended that the Dispute Settlement Understanding (DSU) ask the EC to bring the relevant
product-specific measures into conformity with its obligations under the SPS Agreement. [FN76]
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The Complaining Parties were less successful in their claim that the EC's product-specific moratoria were not based
on risk assessment and thus did not satisfy WTO obligations. [FN77] As was the case with their challenge to the general
moratorium, [FN78] the Complaining Parties failed in their challenge to the product-specific moratoria under other SPS
provisions; the Panel rejected all claims other than those under the SPS Agreement. [FN79]
*356 3. Member State Bans
Finally, the Complaining Parties challenged the EC-approved restrictions that maintained import or marketing bans
for GM products in six Member States-- Austria, France, Germany, Greece, Italy, and Luxemburg. [FN80] Each of the
countries had justified the measures as protecting human health; consequently, the Complaining Parties argued that the
SPS Agreement, governing human safety issues within measures, be justified by scientific risk assessments as defined by
the SPS Argreement. [FN81] The SPS Agreement requires that restrictions in the name of human health be based on scientifically supportable risk assessment following appropriate procedures. [FN82] The Complaining Parties argued that
the bans did not meet this standard. [FN83]
The EC contended that the actions were justified by environmental concerns, and therefore should be allowed regardless of the SPS requirements. [FN84] Further, the EC argued that each ban fell under the Article 5.7 exception, which allows for temporary precautionary measures when there is insufficient scientific information to adequately assess the risk.
[FN85] Finally, the EC argued that because the measures were based on some scientific knowledge, the requirements of
Article 5.1 were satisfied. [FN86]
The United States claimed that the bans did not qualify for the Article 5.7 exception because the scientific information available was in fact sufficient to show that GM foods were safe. It contends that rather than consider this information, the six countries attempted to justify their bans by using non-human studies that do not meet the standards for scientific assessment established in the SPS Agreement. [FN87]
The Panel found that the bans fell under the SPS Agreement and failed to satisfy the risk assessment requirements
under that Agreement, violating Articles 2.2 and 5.1. [FN88] The Panel further found that because there was sufficient
information with which to assess risk, the temporary exception under Article 5.7 was not applicable. [FN89] It also found
that the available information did not establish that the restrictions protected human health or the environment and were
therefore not justified. [FN90] The *357 Panel determined that the bans must be lifted in order to comply with WTO
trade obligations; if the EC--or more likely an individual Member State--unreasonably delayed, the Complaining Parties
would be able to impose retaliatory tariffs. [FN91] The EC has already asked for more time to determine how to bring
Member States and EC law into compliance with the WTO trade obligations as established in Reports of the Panel.
[FN92]
In conclusion, the Panel found that the EC acted inconsistently with its obligations under specific articles of the SPS
Agreement but not under any of the other WTO trade agreements. The moratoria against GM foods existed and created
unnecessary delays inconsistent with the SPS Agreement. The Panel found that Member State measures were not adequately justified by a scientifically based risk assessment as defined in the SPS Agreement. Of particular interest, the
Panel read the Article 5.1 exception narrowly, rejecting the EC's claim that precaution was justified because of insufficient scientific information. [FN93]
V. Case Analysis
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A. The Opinion Fails to Consider Other Values

The Panel decision did not consider legal authority beyond the WTO, reflecting the WTO's commitment to preserve
market access and free trade. This is especially apparent in its treatment of scientific evidence about risk. The Panel
narrowly defines an acceptable risk assessment, following the requirements of the SPS Agreement. [FN94] The Panel
read the Article 5.1 exception as placing the burden on the EC to prove GM foods unsafe and rejected the EC claims that
risk assessments were not adequate in the face of insufficient scientific data. [FN95] It also failed to consider the EC's
claims of environmental safety brought under alternative Environmental treaties, such as the Convention on Biological
Diversity (CBD). [FN96] In so doing, the Panel's process did not respect the cultural values that underlie the EC's actions and will likely lead to difficulties in the implementation of the Panel's decision.
The EC's actions were not based solely on market considerations. The moratoria responded to political pressure resulting from citizen mistrust of biotech foods and demands for more stringent oversight. [FN97] This citizen reaction was
rooted in cultural considerations existing outside the market and helped structure the EC's determination that GM
products were not proven safe. [FN98] Given its unwillingness to *358 incorporate the broader scope of international law
regarding biotech decisions or to separately consider non-market values, the WTO decision will not resolve the biotech
debate between the EC and the producers of biotech products (primarily the United States, followed by Canada, Argentina, and China). This section outlines three cultural variables motivating the EC regulations--variables the opinion fails
to consider.
1. BSE and the Distrust of Government Regulations
European consumers do not trust their governments to regulate food safety. A series of incidents in the 1990s, involving foot and mouth disease, food-borne illnesses, and, most significantly, BSE (Mad Cow Disease), undermined consumers' trust in their governments. [FN99] BSE is a lethal disease in cattle that, if transmitted through certain meat consumption, can cause a related disease in humans. [FN100] When the first mad cow cases were discovered, the British
government downplayed the significance and denied that there was a connection between the diseased cows and a human
health threat. [FN101] This was later determined to be untrue--BSE had spread from cows to humans who had eaten tainted meat. [FN102] The revelation created a panic, and British beef was rejected throughout Europe. [FN103] Public trust
in the British government eroded. [FN104] The British resumed eating beef, but the distrust of the British government remained. [FN105] In a recent poll, more than half of Europeans were still concerned about BSE. [FN106] Further, more
than one in three Europeans polled thought that the government should do more to regulate food, expressing particular
concern that regulation favored industry over the protection of human health. [FN107]
The initial risk assessments of BSE were based on scientific information incorrectly thought to be sufficient at the
time. [FN108] This failure of science eroded confidence in governmental regulations, as illustrated by the public reaction
to the potential threat caused by artificial hormone use in American beef. [FN109] The uncertainty of the hormones'
safety has resulted in enormous political pressure on the EU to support a ban on beef from cattle treated with hormones.
[FN110]
*359 2. The Precautionary Principle
The European attitude about food safety is characteristic of Europe's broader concern with risk and safety issues, as
expressed in the precautionary principle. While there is no single definitive statement of the precautionary principle, the
Rio Declaration on Environment and Development's definition is widely considered an expression of the principle:
In order to protect the environment, the precautionary approach shall be widely applied by States according to
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their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall
not be used as a reason for postponing cost-effective measures to prevent environmental degradation. [FN111]
Europe has wholeheartedly embraced the principle and played a large part in its creation. The principle originated in
German domestic law, emerging internationally at the 1987 London Conference of the North Sea under the term
precautionary principle. [FN112] The precautionary principle is in the treaty forming the EU and is employed both in
EU law and in European domestic law. [FN113]
The precautionary principle has gained acceptance in the area of environmental protection during the last few decades. Yet the principle has not taken hold in the WTO, where it justifies only a temporary exception that allows a nation
to impose stricter measures protecting health and safety only when significant uncertainty exists. [FN114] The exception
is quite limited: it must be temporary in nature, based on a lack of sufficient information, and new information must be
sought actively during the time the exception is in place. [FN115] Therefore, the differences between the WTO precautionary approach and the EU precautionary principle are significant.
*360 3. Food as a Distinct Cultural Value in Europe
Additionally, the European attitude toward food is an expression of European culture. Throughout Europe, cuisines
are associated with particular nationalities and regions. The EC protects the association of place with traditional food
through regulations restricting the identification of particular regions to foods legitimately produced there. [FN116]
Indeed, anthropologists often study food in order to learn about culture--food and culture are closely linked. [FN117]
Roland Barthes has argued that food can convey cultural authenticity [FN118] and signify national cultural continuity.
[FN119] Thus, food is rooted in culture in such a way that it not only reflects national identity, but also creates and validates it. Moreover, distinctive cultural characteristics arise in nations whose people primarily earn their living through agriculture and thus have particular interactions with food and its cultivation. [FN120] This is why it makes sense to distinguish nations based on their agricultural development, and why we associate certain cultural characteristics with agrarian
nations. [FN121]
Regional food and food habits in Europe are likewise tied to culture. For instance, Rick Fantasia discusses how
French identity is linked with cuisine:
France, above perhaps all other nations, is known to take deep cultural pride in its patrimoine culinaire,
which has been a central part of the national identity since the early nineteenth century, when Grimod de la
Reynire published the first of his annual Almanach des Gourmands chronicling the development of French gastronomy, a way of life that was to become enshrined by Anthelme Brillat-Savarin in 1825 in his Physiology of
Taste, a book of meditations on taste, the senses, the preparation of meals, the social character of dining, and the
philosophy and aesthetics of food, the table, and the body. [FN122]
The French public has created political pressure to preserve their culture through the protection of French cuisine.
[FN123] Moreover, links between protest over globalization and fast food illustrate the ties between food and culture in
France: *361 McDonaldization has become synonymous with cultural homogenization, and McDonald's has been the
source of many protests. [FN124]
B. WTO Process Lacks the Institutional Capacity to Consider Non-Market Values
Free market international trade is a cornerstone of the current international structure. [FN125] As the main body for
coordinating trade among nations, the WTO [FN126] attempts to facilitate trade between its members in three main
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areas: goods (including agricultural products), services, and intellectual property. [FN127] The WTO holds itself out as
a rules-based, member-driven organization--all decisions are by the member governments, and the rules are the outcome
of negotiations among members. [FN128] The objective of the WTO is to encourage the free movement of goods and
services across international boundaries through a systemic and stable framework of trade rules. [FN129]
Based on a modern economic approach to free markets, the WTO emphasizes free access and trade across borders
without discrimination or protectionism. [FN130] However, the WTO has had difficulty regulating agricultural products,
as loyalty and identification with local agriculture have proven to be deeply rooted. [FN131] In particular, when policing
the use of subsidies for local producers and differentiating between legitimate concerns and artificial trade barriers, the
WTO has no mechanism in place to consider social values or preferences. Allowing only limited restrictions based on
food safety premised on scientific assessments, the WTO has favored market access. More often than not, it has found
trade barriers to exist. [FN132] The central problem is that the food safety determinations are framed as questions of science and disregard social considerations or values. The EC Biotech Reports of the Panel reveals the *362 limitations of
the WTO process and its failure to give weight to important cultural values in competition with free trade.
The opinion does not reflect adequately European attitudes about food safety. The Panel refused to employ the precautionary principle in a meaningful way; rather it highlighted the temporary nature of the precautionary-based exception
in the SPS Agreement. The Panel placed the burden of proof on those who want to regulate, which in turn gave greater
preference to free market trade than other values at stake in regulating GM foods.
The WTO opinion fails to recognize that trade occurs within a framework where other values have weight alongside
free trade. The opinion rejects alternative justifications of the national bans--justifications that have grounds in public
international law, such as the Cartagena Protocol, and in European cultural values. [FN133]
The WTO's decision provides an example of markets undermining important cultural values. Michael Walzer criticizes such market imperialism in his book Spheres of Justice, in which he offers a compelling argument for allowing
government to protect important social practices from market influences. [FN134]
Walzer contends that the market does not adequately capture important values in society and tends to undermine
these values. [FN135] For Europe, eating has such social significance; the price people are willing to pay for food does
not reflect the importance that locally produced food and an agrarian existence has to the culture they share. [FN136]
Goods exist within a society and derive meaning from a social setting. As Walzer states:
Bread is the staff of life, the body of Christ, the symbol of Sabbath, the means of hospitality and so
on. Conceivably, there is a limited sense in which the first of these is primary, so that if there were twenty people
in the world and just enough bread to feed the twenty, the primacy of bread-as-the-staff-of-life would yield a sufficient distributive principle. But that is the only circumstance in which it would do so; and even there we cannot be
sure. If the religious uses of bread were to conflict with its nutritional uses--if the gods demanded that bread be
baked and burned rather than eaten--it is by no means clear which use would be primary. [FN137] Democracy
provides a more nuanced measure of how we value goods that have cultural significance. Social understandings of
these goods shape democratic decision-making, As a consequence, democratic regulation of markets accounts for
the cultural significance of food in a way that the free market principles of the WTO ignores. [FN138]
Echoing Walzer, David Bollier contends that markets can co-opt cultural values, stating: We too easily adopt the default language of the market, which *363 usually translates into that joke about the Golden Rule - He who has the gold,
rules. Culture becomes a pawn of the market. [FN139] He goes further to define alternative social and cultural values
in terms of a cultural commons:
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The commons is not just an inventory of marketable assets. It consists of social institutions and cultural traditions that define us as people and enliven us as human beings. The commons consists of lots of inalienable resources that belong to us all--resources that are not for sale because we consider them more important to us than
any market price can capture. [FN140] In other words, people who share a commons share more than a section of
grass. Something important would be lost if the land was divided and grazing rights were subsequently sold to
those who valued the land most.
C. Why Europeans Will Resist
1. General Resistance to WTO Cultural Domination
While cultural values do not fit easily into the market--they are difficult to quantify and do not disaggregate effectively--this does not mean that the values are not worthy of recognition. However, the role of culture in defining the market for particular foods is not recognized by the WTO, whose interest is in advancing trade. This results in goods
stripped of whatever cultural associations they might have. The act of trade, isolated from an understanding of cultural
interactions, threatens ways of life that people have an interest in protecting. By failing to acknowledge these cultural
values, the WTO threatens its own goals--large protests against the WTO are occurring, and people are taking political
action to protect themselves and others from the costs of free trade. [FN141]
A general perception now exists that the WTO process threatens important cultural values around the world. In 1999,
when the WTO held talks in Seattle, in part to settle issues over biotechnology, there was a huge protest partially over biotech products. [FN142] As a result, the WTO was thrust into the public eye with a large number of protesters showing
up during talks over trade agreements. What had been a relatively anonymous organization came under heavy criticism
for its strict free trade focus, possible bias towards the interest of large corporations, and its lack of transparency and
democratic process. [FN143] Critics of the WTO claim that it imposes a set of liberal market-based values on the rest of
the world. [FN144]
*364 Marion Nestle identifies two problems that follow from globalization: (1) a potential loss of national identity
and autonomy to corporations; [FN145] and (2) a threat that those who regulate food at an international level will give
preference to agribusiness over consumer safety. [FN146] This is particularly relevant to GM food, where the cost of
measures, such as labeling, would be initially borne by the industry. Thus the cost to agribusiness is the largest obstacle
to international labeling.
2. European Resistance to WTO Cultural Domination
The perception that the WTO threatens cultural values is particularly strong in Europe. Indeed, the European attitude
towards the WTO's EC Biotech interim decision was negative. In a press release following the February decision, the
European Consumers Organization stated:
BEUC favours a global rule-based trading system, but it is not the solution to every problem. This recent
WTO decision will not make European consumers accept GMOs any more than they do at present. Indeed, it is
more likely to have the reverse effect, if consumers feel that GMOs are being forced upon them. We applaud and
support the Commission's statement that every country has the sovereign right to make its own decisions on
GMOs in accordance with the values prevailing in its society. [FN147] Before the EC Biotech opinion, similar
WTO opinions encountered a cold reception in Europe. When the WTO found that an EC ban on hormone-grown
cattle was a trade violation, the EC elected not to remove the ban. As a result of the EC's decision, the controversy
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remains active today. [FN148] The protest over these decisions reflects a broader negative attitude towards the
WTO, often involving controversy over food and agriculture.
Consider the example of Jose Bove, a sheep farmer and prominent activist in France. Bove gained a following when
he was arrested at a demonstration at a McDonald's construction site in France. [FN149] He was later voted the most
popular man in France for 1999, [FN150] as his protest captured a sentiment against McDonaldization--the movement towards not only fast food but also a standardized, global production method for food and, in particular, the spread of
American culture through this production of fast food. [FN151] Americanization thus takes place not only in the spread
*365 of American food, but also in the American manner of production and McDonald's business model. [FN152]
This resistance to American means of food production emerges again in the dispute over American beef treated with
hormones. In 1996, the United States, joined by Canada, requested consultations before the WTO over EC prohibitions
on the import of meat containing specific hormones, claiming that EC measures were inconsistent with the SPS Agreement. [FN153] Just as in the decision for EC Biotech, the Panel found that the EC had not proven a scientifically
demonstrated risk to health justifying stricter food regulation, as required by the SPS Agreement. [FN154] The core finding that the EC was acting without the requisite showing of scientifically demonstrated risk was upheld, [FN155] and the
EC again had the burden of proving a product dangerous.
The WTO subsequently approved U.S. and Canadian retaliatory tariffs for US $116.8 million and CDN $11.3 million
because of the EC decision not to reverse the ban. [FN156] The EC eventually passed Directive 2003/74/ EC, aimed at
satisfying the requirements of the WTO ruling and including a more narrow independent risk assessment of the hormones. [FN157] However, the United States and Canada disagreed and contended that the new directive still provided an
inadequate scientific basis to justify the ban. [FN158] The tariffs remain in place, and the EC continues to apply the precautionary principle-- upholding the ban while it seeks more complete scientific information to clarify the present state
of knowledge of these substances. [FN159]
The EC decision to keep the ban in the face of the tariffs reflects political pressure from within the EC, indicating
that decisions on food safety are not easily resolved by the WTO. The Europeans' pressure on their governments has led
to continued resistance, which is likely to be repeated with GM foods. If so, the decision in EC Biotech will not advance
the WTO goal of reducing trade barriers; instead a more market-friendly solution is needed. The concluding section suggests that strict labeling and traceability of GM foods by companies exporting to the EU offers that solution.
*366 D. Labeling as an Alternative
The conflict seen in EC Biotech will not be easily resolved under any scenario--those opposed to GM foods will continue to resist, creating the political and market difficulties described above, and those who profit from GM foods will
continue to demand market access. As we have seen, the WTO does not have the institutional capacity to assess trade
measures in light of cultural factors that play an important role in European regulations of GM foods.
No Panel decision will entirely resolve the debate over GM food, but the WTO could have restructured the debate by
encouraging a compromise in which labeling is a condition for market access. [FN160] Labeling would bracket safety issues, allowing people to assume the government's role as gatekeeper and thereby advance an important free market value.
[FN161] In addition, an international labeling program would settle the controversy without further litigation costs and
delays, which both sides would like to avoid. [FN162]
The Codex Alimentarius Commission, created by the U.N. Food and Agriculture Organization (FAO) and the World
Health Organization (WHO) to establish international food safety standards, is currently developing guidelines for la-
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beling of GM foods. [FN163] In particular, labeling requirements would apply when one of three conditions were met:
(1) food that is no longer equivalent to the conventional non-GM counterparts; (2) food that contains protein or DNA
resulting from gene technology; or (3) food that is produced from, but does not contain, GM organisms or protein or
DNA from gene technology. [FN164] The labeling would describe the genetic modification, including possible allergens.
In a paper written for the FAO Legal Office, Glowka summarizes the benefits of labeling in minimizing potential risks
from GM foods:
As a risk management tool, the information that labels can provide to end-users can refer to a GMO or GMO
product's food toxicity or environmental safety. Consequently, with this information, the end user can take appropriate steps to minimize or avoid the risks specified for example by following the instructions on the label. Labelling and associated documentation may also provide important information to intermediate handlers of
GMOs, for instance when *367 they are in transit through the postal system. In the biosafety context, this latter
role is being further examined under the Biosafety Protocol pursuant to article 18(2) in cooperation with other
fora. [FN165]
The Codex takes the position that all GM foods are not consistent with the requirements of organically produced
foods. [FN166] This is a key point because the process of genetic modification, and not the product, defines how the
food is categorized. [FN167] This distinction is also seen in the U.S. approach to organic food labeling and genetic modification; once again, the process, not the end product, is definitional. [FN168]
Not labeling GM foods creates difficulties for the consumer; if they lack the information to determine which food is
genetically modified, some consumers will refuse to buy any food they suspect to be genetically modified. This could reduce the market share of all imported food from countries such as the United States. On the other hand, labeling GM
foods might allow people to express preferences for certain types of GM food but not others. It would also allow the
food to be marketed more efficiently, and thus, enable the market to eventually set prices that accurately reflect the demand for these goods. Additionally, labeling modified foods will put them into the market more quickly and allow preferences to be better expressed in market behavior.
In the current trade regime, European citizens lack sufficient information about whether imported foods are genetically modified. While the EU requires labeling and traceability of GM foods, the United States only requires labeling of
GM foods if the product is significantly different from its conventional counterpart, for example in terms of its nutritional value or because it introduced a known allergen . . . . [FN169] Thus, the only way for European consumers to
avoid modified foods is to avoid imported foods, particularly from nations such as the United States, Canada, and Argentina that regularly export GM foods without labeling or traceability mechanisms. This consumer pressure translates into
market pressure; inefficiency in the political sphere results from the need for more attenuated choice concerning GM
foods. Secondly, the EU and individual Member States are forced to act as gatekeeper when citizens lack the necessary
information to make informed choices that reflect their cultural identity and values. In this way, EU political pressure requires more than the WTO decision has offered if the EU is to avoid conflict. As it is, the EU operates in a zero-sum
game, and therefore it must choose to work with either domestic interests, or trade partners. It cannot work with both.
*368 VI. Conclusion
The EC Biotech case makes clear that the WTO has failed to resolve the debate over GM foods. Food regulation is
complex--it is tied to cultural values that are not adequately captured by the market. The WTO's commitment to free
trade principles, as seen in the EC Biotech decision and the Hormone case, prevents it from sufficiently considering cultural values. As a result, the decisions do not resolve the conflict.
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Further, by framing the GM debate in terms of safety--as defined by the restrictive definitions of risk assessment allowed in the SPS Agreement--the EC's concern that it must have a right to exclude food that is not culturally acceptable
or adequately proven safe is lost. Because the decision in EC Biotech does not account for these values and interests, the
controversy over GM food regulation is unlikely to end with this decision. More likely, Europe will resist because of
political pressure that, in part, reflects the European perception that their values are not respected. Labeling would alleviate the tension in a way that would solve the trade issues--without having to resolve the debate over safety. This is because labeling provides information that allows citizens of the EC and Member States to act consistently with their values, and thus perceive that their values are respected.
While labeling provides a way around the immediate trade conflict, the institutional inability of the WTO to consider
non-market values would remain. This underlying problem indicates the need to reconsider how to frame trade disputes
involving values outside of the market, and what institutions are the appropriate arbiters of such disputes. Ultimately, the
debate must be addressed through international reforms that are able to take adequate account of the cultural factors, such
as those seen in the GM food debate.
[FNd1]. 2007 J.D. Candidate, University of Texas School of Law. The author would like to thank Professor Thomas
McGarity, Ken Ward, Chris Hammock, and Patricia Hudson for helpful comments and suggestions on various drafts. The
author would also like to thank Ruth Karper and Skye Masson of the Texas International Law Journal.
[FN1]. Jean-Anthelme Brillat-Savarin, The Physiology of Taste (1825).
[FN2]. See Reports of the Panel, European Communities--Measures Affecting the Approval and Marketing of Biotech
Products, at 1, WT/DS291/R (U.S.), WT/DS292/R (Can.), WT/DS293/R (Arg.) (Sept. 29, 2006) [hereinafter EC Biotech
Reports of the Panel], available at http://www.wto.org/english/tratop_e/dispu_ e/cases_e/ds291_e.htm (incorporating the
Complaints by the United States, Canada, and Argentina). In this Comment, I use the term genetically modified (GM);
the WTO employs the term biotechnology (biotech) rather than genetically modified or recombinant DNA. However,
these terms are often used interchangeably.
[FN3]. Id. (issuing one report for the dispute but listing the respective dispute number for each complaint).
[FN4]. Many trade disputes do not involve, at least on the surface, deep disagreements about the nature of the product, its
safety, or its desirability; as a result, compromises are easier to make, based on the agreed upon rules of the international
trade regime and the WTO. For example, determining the regulation of specific electronic components is unlikely to create debate. However, as the disagreements move closer to issues involving conflicting values, making determinations becomes increasingly difficult. For example, agricultural tariffs are difficult to negotiate because agriculture and agricultural products have different values in different countries, and those values can come into conflict with the principles of a
free market. We see similar problems when we consider negotiations over language.
[FN5]. Similar cases in front of the WTO have been difficult to resolve. A parallel case involves an EC ban on the importation of meat from the United States and Canada that may contain certain artificial hormones. The WTO found that
the ban was in violation of trade rules and, eventually, authorized the United States and Canada to impose retaliatory
trade tariffs. A key aspect of the decision was that the EC had not satisfied the requirements that they provide scientific
proof of harm that could result from the use of the hormones in meat. See Recourse by the United States to Article 22.2
of the DSU, European Communities--Measures Concerning Meat and Meat Products (Hormones), WT/DS26/19 (May
18, 1999) [hereinafter United States Recourse to Article 22.2, EC Hormones]; see also Recourse by Canada to Article
42 TXILJ 345
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22.2 of the DSU, European Communities--Measures Concerning Meat and Meat Products (Hormones), WT/DS48/17
(May 20, 1999) [hereinafter Canada Recourse to Article 22.2, EC Hormones].
The EC has subsequently modified the ban and conducted an independent scientific assessment of the danger;
however the EC ban remains in place. Commission Background Paper (EU), The Hormone Case: Background and
History, MEMO/00/27 (May 24, 2000), available at http://www.foodlaw.rdg.ac.uk/eu/doc-20.htm.
[FN6]. See generally EC Biotech Reports of the Panel, supra note 2. The SPS Agreement addresses food safety and animal and plant regulations among WTO member nations concerning measures necessary for the protection of human,
animal or plant life or health, provided that such measures are not inconsistent with the provisions of this Agreement.
Agreement on the Application of Sanitary and Phytosanitary Measures art. 2.1, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, Legal Instruments - Results of the Uruguay Round, 1867 U.N.T.S.
493 (1994) [hereinafter SPS Agreement], available at http://www.wto.org/English/docs_ e/legal_e/15-sps.pdf; see also
Marrakesh Agreement Establishing the World Trade Organization, Apr. 15, 1994, Legal Instruments - Results of the Uruguay Round, 1867 U.N.T.S. 154, reprinted in 33 I.L.M. 1125 (1994) [hereinafter WTO Agreement], available at http://www.wto.org/english/docs_e/legal_e/04-wto.pdf.
[FN7]. Biotechnology can introduce genetic traits wholly different than those naturally occurring in the plant. See
European Community Report, Harnessing the Potential of Modern Microbiology, at 4 (1999).
[FN8]. See U.N. Food & Agriculture Organization [FAO], Electronic Forum on Biotechnology in Food and Agriculture
Conference 9, Apr. 28-June 1, 2003, Background Document, 2(c) (2003) [hereinafter FAO Background Document],
available at http://www.fao.org/biotech/C9doc.htm.
[FN9]. Id. 1.
[FN10]. Id.
[FN11]. Genetically Engineered Food Methods and Detection 31 (Knut J. Heller ed., 2d ed. 2006).
[FN12]. See id. at 41-46.
[FN13]. Id. at 40.
[FN14]. The Flavr Savr tomato was largely unsuccessful in the market due in part to a decline in quality related to the
modification. U.N. FAO, Genetically Modified Organisms, Consumers, Food Safety and the Environment 12 (FAO Ethics Series 2001) [hereinafter FAO Ethics Series], available at ftp:// ftp.fao.org/docrep/fao/003/X9602e/X9602e00.pdf.
[FN15]. See Consumer Acceptance of Genetically Modified Foods 95-110 (R.E. Evenson & V. Santaniello eds., 2004)
(stating that many consumers remain reluctant to use biotech products that primarily benefit agribusiness by reducing
production costs; however, if biotech created products that directly benefited consumers, reluctance might be overcome,
lessening both economic difficulties and the amount of regulation).
[FN16]. Rice that was genetically modified to produce vitamin A (golden rice) has been successfully created in the
laboratory. There are currently plans to distribute the rice without charge when it serves humanitarian needs; however,
there remain significant issues, including intellectual property challenges and concerns over how the rice will perform on
a wide scale. See Quirin Schiermeier, Designer Rice to Combat Diet Deficiencies Makes its Debut, 409 Nature 551
(2001), available at http:// www.nature.com/nature/journal/v409/n6820/pdf/409551a0.pdf; see also Nina Schnapp &
Quirin Schiermeier, Critics Claim Sight-Saving Rice is Over-Rated, 410 Nature 503 (2001), available at http://
42 TXILJ 345
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www.nature.com/nature/journal/v410/n6828/pdf/410503a0.pdf.
[FN17]. The risk of antibiotic resistance stems from the use of antibiotic-resistant genes that enable modified products to
be identified by saturating cell samples with antibiotics. As a result, resistant genes--modified genes-- survive. If the resistance could be transferred from the biotech food to other organisms it encounters, particularly microorganisms in digestive systems of stock or humans, the efficacy of antibiotics could be threatened. See Andrew Rowell, Don't Worry, it's
Safe: The True Story of GM Food, BSE and Foot and Mouth 126-27, 130-38 (2004). But see Alan McHughen, Pandora's
Picnic Basket: The Potential and Hazards of Genetically Modified Foods 186 (2000) (arguing that resistance is as likely
to develop by natural means as from biotech use of antibiotic marker genes).
A key concern is that altered food could reach the market with no warning of potential food allergies, either because
the gene had unknowingly spread to other crops, or because the protein was not identified as present in the biotech
foods. The risk of allergy is best illustrated by the StarLink corn incident, where corn approved for crop use was found
to be present in Taco Bell taco shells. Another allergy scare occurred when DNA from Brazil nuts, a common allergen,
was used in biotech experiments. See Saturday Morning News: Kraft Recalls Taco Bell Shells (CNN television broadcast Sept. 23, 2000) (transcript available at http:// transcripts.cnn.com/transcripts/0009/23/smn.08.hmtl); McHughen,
supra, at 119-21.
[FN18]. See McHughen, supra note 17, at 186.
[FN19]. The environmental risks of living modified organisms (LMOs) play an important role in European regulation.
LMOs are regulated under the Convention on Biological Diversity (CBD); in EC Biotech, the European Union raised the
protocol as an alternative forum for the debate over GM food regulation. See generally Convention on Biological Diversity, opened for signature June 5, 1992, 1760 U.N.T.S. 142, reprinted in 31 I.L.M. 818 (1992) [hereinafter CBD],
available at http://www.biodiv.org/doc/legal/cbd-un-en.pdf; see also McHughen, supra note 17, at 249 (discussing conflicts that arise from differing regulatory bodies applying intellectual property law to biotechnology).
[FN20]. This occurred in the United States where biotech corn pollen, containing B.t. (Bacillus thuringiensis), a common
pesticide used in traditional organic farming, produced by the modified plants, killed the larvae of Monarch butterflies.
Sharon Guynup, Homeless Butterflies - Destruction of Habitat for Monarch Butterfly in Mexico; Concerns of Bioengineered Plants on Butterflies, Science World, Nov. 27, 2000. But see McHughen, supra note 17, at 186-91 (arguing that
B.t. would have the same effect). In the EC, there is a concern that biotech crops will negatively influence bird populations if GM crops become common, since a large percentage of European land is farmed. McHughen contends that the
reduction in bird population is due to the intensification of land use, and that the affects of GMOs on bird populations is
unknown but could provide a solution by improving crop yield and thus reducing the total land needed for production. Id.
at 107-09.
[FN21]. Nuffield Council on Bioethics, Genetically Modified Crops: The Ethical and Social Issues 3 (1999) (stating that
concern over risks may distract both the public and governments from giving proper attention to the benefits they could
bring).
[FN22]. Id. at 2-3.
[FN23]. Id.
[FN24]. Id. at 6.
[FN25]. Thomas O. McGarity, Seeds of Distrust: Federal Regulation of Genetically Modified Foods, 35 U. Mich. J.L.
42 TXILJ 345
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Reform. 403, 430-31 (2002).

[FN26]. FAO Background Document, supra note 8, 2(a).
[FN27]. Id.
[FN28]. Traceability of food means that each step in the food's history can be traced in order to determine the origin and
subsequent handling of the food. See generally European Commission, From the Farm to the Fork (2005), available at http://europa.eu.int/comm/food/resources/publications_en.htm (stating that each step of production should record where the
food came from and where it goes); see also EC Biotech Reports of the Panel, supra note 2, at D4-6 (discussing U.S. regulation of GM foods).
[FN29]. Labeling would require that any food or feed containing genetically modified food or processed from genetically
modified food, would have to disclose that information on the label; labeling depends on traceability. See generally Farm
Foundation, Food Traceability & Assurance in the Global Food System (Traceability and Assurance Panel Report July
2004),
available
at
http://www.farmfoundation.org/projects/02-66/documents/FINALFULLREPORTwCover8-5-04_000.pdf; see also EC Biotech Reports of the Panel, supra note 2, at D4-6.
[FN30]. See FAO Ethics Series, supra note 14, at 14-17.
[FN31]. The United States has not established GM-specific requirements; rather, modified foods are regulated under the
existing framework of the FDA, EPA and USDA. See Rebecca M. Bratspies, The Illusion of Care: Regulation, Uncertainty, and Genetically Modified Food Crops, 10 N.Y.U. Envtl. L.J. 297, 311-14 (2002). For an overview of the roles of
U.S. agencies in the regulation of GM foods, see the United States Regulatory Agencies Unified Biotechnologies Website, http://usbiotechreg.nbii.gov/roles.asp (last visited Apr. 7, 2007).
[FN32]. Starlink corn was engineered by Aventis CropScience to contain an insecticidal protein. Starlink Official Website, Starlink History, http:// www.starlinkcorn.com/History/What%20is%C20StarLink%20corn.htm (last visited Apr. 7,
2007).
[FN33]. See Rebecca M. Bratspies, Myths of Voluntary Compliance: Lessons from the StarLink Corn Fiasco, 27 Wm. &
Mary Envtl. L. & Pol'y Rev. 593, 596 (2003).
[FN34]. Id. at 620.
[FN35]. Id. at 628-29.
[FN36]. The U.S. government exerted significant effort controlling damage to trade; additionally, the costs of trying to
remove Starlink corn from the food supply were very high. Aventis Corporation was also found liable for damages to
Taco Bell, the name under which the taco shells were marketed, for damages to the company's reputation and lost sales.
See id. at 623-27.
[FN37]. Id. at 623.
[FN38]. Andrew Pollack, Study Raises Doubt About Allergy to Genetic Corn, N.Y. Times, Nov. 10, 2003, at C10, available at http:// query.nytimes.com/gst/fullpage.html? sec=health&res=9a06e5d91139f933a25752c1a9659c8b63.
42 TXILJ 345
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[FN39]. Bratspies, supra note 33, at 645-46.

[FN40]. David Barboza, As Biotech Crops Multiply, Consumers Get Little Choice, N.Y. Times, June 10, 2001, at A1,
available
at
http://
query.nytimes.com/gst/fullpage.html?
res=9806E0DF153EF933A25755C0A9679C8B63&sec=health&spon=& partner=permalink&exprod=permalink.
[FN41]. See Genetically Modified Food and Feed (GMOs) (2006), http:// europa.eu/scadplus/leg/en/lvb/l21154.htm
(summarizing EU regulations of GM foods).
[FN42]. Council Regulation (EC) 258/97, Concerning Novel Foods and Novel Food Ingredients, art. 7, 1997 O.J. (L 43)
1, available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31997R0258:EN:HTML.
[FN43]. Joanne Scott, European Regulation of GMOs and the WTO, 9 Colum. J. Eur. L. 213, 226 (2003). For further discussion of member state regulations, see Franz Xaver Perrez, Taking Consumers Seriously: The Swiss Regulatory Approach to Genetically Modified Food, 8 N.Y.U. Envtl. L.J. 585 (2000), which provides a good case study on one of the
first nations to require labeling on GM foods, where the concern over GM foods is based on social and environmental
concerns, including a concern for the dignity of creation.
[FN44]. Request for Consultations by the United States, European Communities--Measures Affecting the Approval and
Marketing of Biotech Products, WT/DS291/1 (May 13, 2003) [hereinafter U.S. Request for Consultations], available at
http://www.worldtradelaw.net/cr/ds291-1(cr).pdf..
[FN45]. Council Regulation No. (EC) 1829/2003, On Genetically Modified Food and Feed, arts. 12, 47, 2003 O.J. (L
268) 11, 22, available at http://eur-lex.europa.eu/LexUriServ/site/en/oj/2003/l_268/l_26820031018en00010023.pdf.
[FN46]. Id. at 2.
[FN47]. For a discussion on food labeling reform in the EU, see generally Ignacio Carreo, The New European Community Rules on the Labeling of Allergen Ingredients in Foodstuffs, 60 Food & Drug L.J. 375 (2005).
[FN48]. European Member States still had domestic restrictions on GM foods at the end of 2005. See EC Biotech Reports of the Panel, supra note 2, at 31, 631.
[FN49]. Id.
[FN50]. In particular, the United States claimed the following violations: Articles I, III, X, and XI of GATT; Article 4 of
the Agricultural Agreement; Articles 2 and 5 of the TBT Agreement; and Articles 2, 5, 7, 8 as well as Annex B and Annex C of the SPS Agreement. See U.S. Request for Consultations, supra note 44. Canada claimed the following violations: Articles I:1, III:4, X:1, XI:1 and XXIII:1(b) of GATT; Articles 2.1, 2.2, 2.8, 5.1 and 5.2 of the TBT Agreement;
Article 4.2 of the Agricultural Agreement; and Articles 2.2, 2.3, 5.1, 5.6, 7, and 8 as well as Annex B and C of the SPS
Agreement. See Request for Consultations by Canada, European Communities--Measures Affecting the Approval and
Marketing of Biotech Products, WT/DS292/1 (May 13, 2003) [hereinafter Canada Request for Consultations], available
at http:// www.worldtradelaw.net/cr/ds292-1(cr).pdf. Argentina claimed the following violations: Articles I, III, X,XI of
GATT; Articles 2, 5, and 12 of the TBT Agreement; Article 4 of the Agricultural Agreement; and Articles 2, 5, 7, 8, and
10, as well as Annex B and Annex C of the SPS Agreement. See Request for Consultations by Argentina, European
Communities--Measures Affecting the Approval and Marketing of Biotech Products, WT/DS293/1 (May 14, 2003)
[hereinafter Argentina Request for Consultations], available at http:// www.worldtradelaw.net/cr/ds293-1(cr).pdf.
42 TXILJ 345
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[FN51]. U.S. Request for Consultations, supra note 44; see also Canada Request for Consultations, supra note 50; see
also Argentina Request for Consultations, supra note 50.
[FN54]. Request for the Establishment of a Panel by the United States, European Communities--Measures Affecting the
Approval and Marketing of Biotech Products, at 2, WT/DS291/23 (Aug. 8, 2003), available at http://
www.worldtradelaw.net/pr/ds291-23(pr).pdf; Request for the Establishment of a Panel by Canada, European Communities--Measures Affecting the Approval and Marketing of Biotech Products, at 1, WT/DS292/17 (Aug. 8, 2003)
[hereinafter
Canada
Request
for
the
Establishment
of
a
Panel],
available
at
http://
www.worldtradelaw.net/pr/ds292-17(pr).pdf; Request for the Establishment of a Panel by Argentina, European Communities--Measures Affecting the Approval and Marketing of Biotech Products, at 2, WT/DS293/17 (Aug. 8, 2003)
[hereinafter
Argentina
Request
for
the
Establishment
of
a
Panel],
available
at
http://
www.worldtradelaw.net/pr/ds293-17(pr).pdf.
[FN55]. EC Biotech Reports of the Panel, supra note 2, at 2.
[FN56]. Id. at 3.
[FN57]. Id.
also Argentina Request for Consultations, supra note 50; see also SPS Agreement, supra note 6, arts. 1-2 (allowing signatories to regulate products as necessary to protect human, plant, and animal health, provided that the regulations are
based on scientific principles and supported by scientific evidence); see also, infra note 73 and accompanying text.
[FN59]. Canada Request for the Establishment of a Panel, supra note 54; Argentina Request for the Establishment of a
Panel, supra note 54.
[FN60]. First Written Submission by the European Communities, European Communities--Measures Affecting the Approval and Marketing of Biotech Product, at 64, DS/291, DS/292, DS/293 (May 17, 2004) [hereinafter First Written Submission by the European Communities], available at http:// trade.ec.europa.eu/doclib/docs/2004/june/tradoc_117687.pdf.
[FN61]. Id.
[FN62]. Id.
[FN63]. Id.
[FN64]. Id.; see also Cartagena Protocol on Biosafety to the Convention on Biological Diversity, adopted Jan. 29, 2000,
1760 U.N.T.S. 9, reprinted in 39 I.L.M. 1027 (2000) [herinafter Cartagena Protocol], available at http://www.biodiv.org/doc/legal/cartagena-protocol-en.pdf. The Cartagena Protocol is a supplementary agreement to the
Convention on Biological Diversity, which established international environmental standards, including the protection of
species and environmental preservation across borders. CBD, supra note 19.
42 TXILJ 345
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[FN65]. See EC Biotech Reports of the Panel, supra note 2, at 140-42.

[FN66]. An alternative defense was made by the EC: its actions were not measures because they were not explicit or official decisions but rather informal inaction. See id. at 172.
[FN67]. See id. at 127-28.
[FN68]. Id. at 866. The Panel did not assess the overall safety of GM food and did not rule as to whether GM products
were substantially similar to other products. Further the Panel did not address whether the EC had a right to require premarketing approvals, whether the EC approval procedures violated WTO Agreements, whether the EC evaluations of the
safety of biotech products were correct, or whether the EC regulatory scheme was in accordance with WTO obligation0s.
Id. at 127-28, 1067.
[FN69]. See id. at 1067.
[FN70]. See EC Biotech Reports of the Panel, supra note 2, at 624.
[FN71]. See id.
[FN72]. See generally Interim Reports of the Panel, European Communities-- Measures Affecting the Approval and Marketing of Biotech Products, at 2, WT/DS291/Interim, WT/DS292/Interim, WT/DS293/Interim (Feb. 7, 2006) [hereinafter
Interim Reports of the Panel], available at http:// www.foei.org/media/2006/WTO_report_descriptive.pdf (discussing the
United States, Canadian, and Argentinian complaints).
[FN73]. See Understanding on Rules and Procedures Governing the Settlement of Disputes [Dispute Settlement Understanding] art. 3.8, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 2, Legal Instruments--Results
of
the
Uruguay
Round,
33
I.L.M.
1125
(1994),
available
at
http://www.wto.org/english/docs_e/legal_e/28-dsu.pdf (where there is an infringement of the obligations assumed under a
covered agreement, the action is considered prima facie to constitute a case of nullification or impairment).
[FN74]. Each country had a separate list of products, including twenty-five U.S. products, four Canadian products, and
ten Argentinean products. See U.S. Request for Consultations, supra note 44; see also Canada Request for Consultations,
supra note 50; Argentina Request for Consultations, supra note 50.
[FN75]. See EC Biotech Reports of the Panel, supra note 2, at 849.
[FN76]. Id. at 1072-73, 1078, 1084.
[FN77]. SPS Agreement, supra note 6, arts. 5.1-5.7 (requiring that all measures follow appropriate scientific protocols,
including scientifically supportable risk assessments).
[FN78]. Relevant provisions include, Annex C(1)(a) (forbidding any undue delay in processing applications), Article 8
(requiring that applicants be kept informed of the progress of their applications), Annex C(1)(b), and Annex B(1)
(requiring that SPS measures be promptly published). Id. art. 8 & Annexes C(1)(a), C(1)(b), B(1).
[FN79]. EC Biotech Reports of the Panel, supra note 2, at 1067-69.
[FN80]. Article 12 of Council Regulation 258/97 allows Member States to institute a measure to restrict or ban a product
if the Member State has a justifiable reason for considering it a danger to human health or the environment. Council Reg-
42 TXILJ 345
Page 21
ulation 258/97, supra note 42, art 12.

[FN81]. U.S. Request for Consultations, supra note 44; see also Canada Request for Consultations, supra note 50; Argentina Request for Consultations, supra note 50.
[FN82]. SPS Agreement, supra note 6, art. 5.1 (Members shall ensure that their sanitary or phytosanitary measures are
based on an assessment, as appropriate to the circumstances, of the risks to human, animal or plant life or health, taking
into account risk assessment techniques developed by the relevant international organizations.). The risk assessments
must consider, based on sufficient scientific data, whether the likelihood and severity of potentials dangers exceed what
member States determine to be an adequate level of protection of human health; this consideration must allow for a sufficient margin of error and the level of protection must not be more trade-restrictive than necessary. See id. arts 5.1, 5.5 &
Annex 1.
[FN83]. EC Biotech Reports of the Panel, supra note 2, at 75 (containing the First Oral Statement of the United States).
[FN84]. Id. at 328.
[FN85]. Id. at 97.
[FN86]. Id. at 626.
[FN87]. Id. at 36-38.
[FN88]. Id. at 1074.
[FN89]. EC Biotech Reports of the Panel, supra note 2, at 956.
[FN90]. Id. at 1069.
[FN91]. Id. at 1087.
[FN92]. See WTO Summary of the Dispute DS291, European Communities--Measures Affecting the Approval and Marketing of Biotech Products, http:// www.wto.org/english/tratop_e/dispu_e/ cases_e/ds291_e.htm (last visited Apr. 8,
2007) [hereinafter EC Biotech Summary].
[FN93]. See EC Biotech Reports of the Panel, supra note 2, at 937-45.
[FN94]. Id.
[FN95]. Id.
[FN96]. See id. at 328-35.
[FN97]. See generally Theofanis Christoforou, The Precautionary Principle and Democratizing Expertise: A European
Legal Perspective, 30 Sci. & Pub. Pol'y 205 (2003) (discussing the process of European risk assessment).
[FN98]. Culture is not an aspect of markets; rather, culture defines markets and preferences. Culture determines what
goods are valuable, and thus what goods are offered for sale. For an illustration of the role of culture in shaping preferences, see Theodore Bestor's discussion of the recent emergence of sushi in Western markets. Theodore C. Bestor, How
42 TXILJ 345
Page 22
Sushi
Went
Global,
Foreign
Policy,
Nov.-Dec.
www.globalpolicy.org/globaliz/cultural/2001/1201sushi.htm.
2000,
at
54,
54-63
available
at
http://
[FN99]. Marion Nestle, Safe Food: Bacteria, Biotechnology, and Bioterrorism 250 (2003).
[FN100]. Nicols Fox, Spoiled: Why Our Food is Making us Sick 291 (1998).
[FN101]. See Nestle, supra note 99, at 252.
[FN102]. See id. at 252-53.
[FN103]. See id. at 253.
[FN104]. See id.
[FN105]. See Claude Fischler, The Mad Cow Crisis: A Global Perspective, in Food in Global History, 207, 207-13
(Raymond Grew ed., 1999).
[FN106]. Eur. Comm'n, Special Eurobarometer 225: Social Value, Science and Technology 99 (June 2005) [hereinafter
Special Eurobarometer 225: Social Value, Science and Technology], available at http:// mokslasplius.lt/lms/files/active/0/ebs_225_report_en.pdf.f
[FN107]. Id.
[FN108]. Fox, supra note 100, at 307.
[FN109]. Id. at 100-01.
[FN110]. Id. at 101.
[FN111]. United Nations Conference on Environment and Development, June 3-14, 1992, Rio de Janeiro, Brazil, Rio Declaration on Environment and Development, U.N. Doc. A/Conf.151/5/Rev.1 (June 14, 1992), reprinted in 31 I.L.M. 876
(1992), available at http:// www.unep.org/Documents/Default.asp?DocumentID=78&ArticleID=1163.
[FN112]. Michael Pollan, The Year in Ideas: A to Z; Precautionary Principle, N.Y. Times, Dec. 9, 2001.
[FN113]. Treaty Establishing the European Community, arts. 130r-130t, Nov. 10, 1997, 1997 O.J. (C 340) 3, reprinted in
31 I.L.M. 253. See generally Theofanis Christoforou, The Precautionary Principle in EC Law and the WTO Legal System, in The Precautionary Principle 99, 116 (Georges Kremlis, Yiorgos Balias & Antonis Sifakis eds., 2004).
[FN114]. SPS Agreement, supra note 6, art. 5.7. The SPS Agreement defines the limits of the exception in Article 5.7:
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 organizations 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.
Id.
[FN115]. Id.
42 TXILJ 345
Page 23
[FN116]. Certain regional names for wines and cheeses are thus restricted; for example, sparkling wine cannot be labeled
champagne unless produced in that region. See generally National Council of Culinary Arts website, http://
www.culture.gouv.fr/culture/min/services.htm (last visited Apr. 8, 2007) (the Council was established by the French
Ministry of Culture in 1989 to protect the culinary patrimony of France).
[FN117]. See Carole Counihan & Penny van Esterik, Introduction to Food and Culture: A Reader 1, 1 (Carole Counihan
& Penny van Esterik eds., 1997).
[FN118]. Roland Barthes, Image, Music, Text 32-51 (Stephen Heath trans., 1977).
[FN119]. Roland Barthes, Toward a Psychosociology of Contemporary Food Consumption, in 5 Food and Drink in History 166, 166-73 (Elborg Forster & Patricia M. Ranum, trans., Robert Forster & Orest Ranum eds., 1979).
[FN120]. Counihan & Esterik, supra note 117, at 1.
[FN121]. Michael R. Dove, The Agronomy of Memory and the Memory of Agronomy: Ritual Conservation of Archaic
Cultigens in Contemporary Farming Systems, in Ethnoecology: Situated Knowledge/Located Lives 45, 45-66 (Virginia
D. Nazarea ed., 1999); see also The Association for the Study of Food & Society, http:// www.food-culture.org (last visited Apr. 8, 2007). See generally National Council of Culinary Arts website, supra note 116.
[FN122]. Rick Fantasia, Fast Food in France, 24 Theory & Soc'y 201, 201-02 (1995) (citation omitted) (discussing the
identification of cuisine and French culture since the 19th century).
[FN123]. See Jose Bove & Francois Dufour, The World Is Not for Sale: Farmers Against Junk Food 4-5 (2001)
(discussing Bove's famous protest against a McDonald's restaurant and subsequent public support).
[FN124]. Id.; George Ritzer, The McDonaldization of Society 9-11 (1997).
[FN125]. In the wake of WWII, Breton Woods created three means of promoting international stability in a trade context:
establishing the International Monetary Fund (IMF), the World Bank, and the General Agreements on Tariffs and Trade
(GATT). The GATT established a system of managing tariffs and trade in order to encourage access to the market unhindered by protectionism, and established a system of equal treatment (most-favored-nation status) among all members
to the Agreement. The mechanisms of enforcement, including the WTO, depend primarily on the desire of nations to participate in the international system. General Agreement on Tariffs and Trade, Oct. 30, 1947, 61 Stat. A-11, 55 U.N.T.S.
194, art. III, para. 8(b) [hereinafter GATT]; see also Marrakesh Agreement Establishing the World Trade Organization,
Apr. 15, 1994, Legal Instruments--Results of the Uruguay Round, 1867 U.N.T.S. 154, reprinted at 33 I.L.M. 1144 (1994)
.
[FN126]. According to the WTO Member list, the WTO was composed of 149 nation members at the end of 2005. Members
and
Observors,
Understanding
the
WTO:
The
Organization,
http://www.wto.org/english/thewto_e/whatis_e/tif_e/org6_ e.htm (last visited Apr. 8, 2007).
[FN127].
See
WTO,
The
World
Trade
tp://www.wto.org/english/res_e/doload_e/inbr_e.pdf.
Organization
in
Brief
(2005),
available
at,
[FN128]. WTO: What is the WTO?, http://www.wto.org/english/thewto_e/thewto_ e.htm (last visited Apr. 8, 2007).
[FN129]. WTO, The World Trade Organization in Brief, supra note 127.
ht-
42 TXILJ 345
Page 24
[FN130]. Id.
[FN131]. United Nations University-Institute of Advanced Studies [UN-UIAS] Report, Trading Precaution: The Precautionary
Principle
and
the
WTO
3
(2005),
available
at
http://www.ias.unu.edu/binaries2/Precautionary%20Principle%C20and% 20WTO.pdf.
[FN132]. Id. at 11.
[FN133]. See generally EC Biotech Reports of the Panel, supra note 2, at 328-35.
[FN134]. See generally Michael Walzer, Spheres of Justice xi-xvi (1983).
[FN135]. Id. at 6-10.
[FN136]. Dave Toke, The Politics of GM Food: A Comparative Study of the UK, USA and EU 94-95 (2004).
[FN137]. Id. at 8.
[FN138]. See generally id. at 16.
[FN139]. David Bollier, Remarks, Globalization and Diversity, UNESCO and Cultural Policymaking: Imperatives for
U.S. Arts and Culture Practitioners and Organizations 3 (Jan. 11 2005) (transcript available at http://
www.bollier.org/pdf/SmithsonianremarksJan2005.pdf).
[FN140]. Id. at 4.
[FN141]. See Sam Howe Verhovek, Seattle Will Drop Most of Trade Protest Cases, N.Y. Times, Jan. 5, 2000, at A15.
[FN142]. Nestle, supra note 99, at 237.
[FN143]. Verhovek, supra note 141.
[FN144]. Id. at A15-16.
[FN145]. Nestle, supra note 99, at 236.
[FN146]. Id.
[FN147]. Press Release, Bureau Europen des Unions de Consommateurs [The European Consumers' Organisation],
Force-Feeding Never Works (Feb. 8, 2006), available at http://www.beuc.org (followPress Room hyperlink and locate by
date).
[FN148]. EC Biotech Summary, supra note 92.
[FN149]. See Bove & Dufour, supra note 123, at 12.
[FN150]. See Ben Taylor, Food in France: From la nouvelle cuisine to la malbouffe, in French Cultural Debates 52 (John
Marks & Enda McCaffrey eds., 2001).
[FN151]. McDonald's is the poster child for globalization. The fast food chain has spread around the world, from France
42 TXILJ 345
Page 25
to China, and has generated books, articles, and protests. Since 1972, McDonald's has become the most prolific fast food
restaurant in France. J.M. Normand, McDonald's critique mais toujours frequente, Le Monde, Sept. 24, 1999, at 29.
[FN152]. Ritzer, supra note 124, at 55.
[FN153]. United States, EC Hormones Report, supra note 5; Canada, EC Hormones Report, supra note 5.
[FN154]. United States, EC Hormones Report, supra note 5; Canada, EC Hormones Report, supra note 5.; see also EC
Biotech Summary, supra note 92.
[FN155]. WTO Summary of the Dispute WT/DS26, European Communities--Measures Concerning Meat and Meat
Products (Hormones), http:// www.wto.org/english/tratop_e/dispu_e/cases_e/ds26_e.htm (last visited Apr. 8, 2007)
[hereinafter EC Hormones Summary].
[FN156]. United States Recourse to Article 22.2, EC Hormones, supra note 5.
[FN157]. Council Directive 2003/74/EC, Concerning the Prohibition on the Use in Stockfarming of Certain Substances,
2003
O.J.
(L
262)
17-21,
available
at
http://eur-lex.europa.eu/LexUriServ/site/en/oj/2003/l_262/l_
26220031014en00170021.pdf (amending Council Directive 96/22/EC) (limiting livestock hormone usage).
[FN158]. EC Hormones Summary, supra note 155.
[FN159]. Press Release, European Union, EU Complies with WTO Ruling on Hormone Beef, Calls on US and Canada to
Lift Trade Sanctions, No. 61/03 (Oct. 15, 2003), available at http:// www.eurunion.org/news/press/2003/2003061.htm.
[FN160]. See Special Eurobarometer 225: Social Value, Science and Technology, supra note 106.
[R]esults show that in cases of potential conflict between a scientific application and the individuals' ethic system, public authorities' regulation and control are essential. From this perspective, the European Commission could play
an extremely important role as three in four citizens believe that its work in regulating on science and technology for all
EU countries has a positive effect on society.
Id.
[FN161]. While the case discussed here did not center on a labeling issue, I suggest that a case is likely to do so in the
near future.
[FN162]. SeeFAO Ethics Series, supra note 14.
[FN163]. See generally Codex Alimentarius Commission, FAO & World Health Organization [WHO], Report of the
Thirty-Fourth Session of the Codex Committee on Food Labelling, Ottawa, Canada, May 1-5, 2006.
[FN164]. Lyle Glowka, Food and Agriculture Organization, Law and Modern Biotechnology: Selected Issues of Relevance to Food and Agriculture 78 (2003) (quoting Codex Proposed Draft Guidelines for the Labeling of Foods Obtained
Through Certain Techniques of Genetic Modification/Genetic Engineering 1, para. 1.1), available at ftp://
ftp.fao.org/docrep/fao/006/y4839E/y4839E00.pdf.
[FN165]. Id. at 45.
[FN166]. Codex Alimentarius Commission, FAO & WHO, Guidelines for the Production, Processing, Labelling and
Marketing
of
Organically
Produced
Food
(1999),
available
at
http://
42 TXILJ 345
Page 26
www.codexalimentarius.net/download/standards/360/CXG_032e.pdf.
[FN167]. Id.
[FN168]. See Nestle, supra note 99, at 197-207 (discussing the U.S. regulation of bovine growth hormones in milk).
[FN169]. Alan S. Levy & Brenda M. Derby, Introduction to U.S. Food & Drug Administration, Report on Consumer Focus Groups on Biotechnology (2000), available at http://www.cfsan.fda.gov/~comm/biorpt.html.
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42 TXILJ 345

42 Tex. Int'l L.J. 345

Texas International Law Journal

B. Potential Risks and Benefits of

Attitudes About Genetically Modified Foods

B. Governing WTO Agreements

1. The General Moratorium

2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

3. Member State Bans

A. The Opinion Fails to Consider

1. Bovine Spongiform Encephalopathy and the Distrust of Government

2. The Precautionary Principle

3. Food as a Distinct Cultural Value

B. WTO Process Lacks the Institutional Capacity to Consider Non-Market

C. Why Europeans Will Resist

1. General Resistance to WTO Cultural Domination

2. European Resistance to WTO

2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

A. Genetically Modified Foods

2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

B. Governing WTO Agreements and International Law

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2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

A. The Opinion Fails to Consider Other Values

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2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

Reform. 403, 430-31 (2002).

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[FN39]. Bratspies, supra note 33, at 645-46.

2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

[FN65]. See EC Biotech Reports of the Panel, supra note 2, at 140-42.

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ulation 258/97, supra note 42, art 12.

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2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

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