GMOs and the WTO Rules

Mark HalleMinsk, 24 October 2008

Scientific Organizations

• Codex Alimentarius: developing general principles for risk analysis for GM foods, and specific guidance on risk assessment

• Also examining analytical methods to detect GMOs in foods

• A joint FAO/WHO expert consultation is underway on safety aspects of GM foods

• Similar efforts in OIE and IPCC

What are GMOs?

• GMOs are created by transferring genetic material from one organism to the other.

• Although there is a general agreement that GMOs must not pose a threat to human health or the environment, countries do not agree on the acceptable level of risk.

Trade issues linked to GMOs• Trade problems arise when countries have

different regulations on testing and approval procedures for traded GM products…

• Or when they disagree on labelling and identification requirements

• Some countries ban the import and sales of GMOs and their products

• Others consider that separating GM from non-GM products is unnecessary and costly and that labelling requirements are an unnecessary trade barrier

GMO-related WTO Agreements

• Agreement on the Application of Sanitary and Phyto-Sanitary Measures (SPS)

• Agreement on Technical Barriers to Trade (TBT)

• Agreement on Trade-Related Intellectual Property Rights (TRIPS)

• General Agreement on Tariffs and Trade (GATT)

SPS Provisions• SPS measures are aimed to protect human or

animal life from risks arising from additives, contaminants, toxins or disease-causing organisms in their food, beverages or feedstuffs.

• Or to protect a country from damage caused by the entry, establishment or spread of pests

• First probably applies to GMOs; second is more doubtful

• If either applies, the measure would have to conform to SPS requirements for risk assessment and least trade-restrictive measures

SPS Article 5.7

• GMO-related trade restrictions can be taken under 5.7 as “provisional measures” applied for a “reasonable time”

• Example of EU moratorium: dispute over state of scientific knowledge, but also about how long an interim arrangement could apply and still be considered “reasonable”.

TBT Provisions

• TBT allows governments to take measures to protect health or environment, provided they are not more trade-restrictive than necessary…

• … and that they do not discriminate among “like products”. But are GMOs “like” products?

• Most TBT concern revolves around labelling requirements

TRIPS Provisions

• TRIPS allows governments to exclude from patentability plants and animals and essentially biological processes for the production of plants and animals

• It also allows temporary exclusion from patentability when necessary to protect human, animal or plant life or health or to avoid prejudice to the environment

GATT Provisions

• Article XX exceptions for measures necessary to protect human, animal and plant life or health

• But “like product” distinctions would likely arise. And it would have to demonstrate that it could pass the “necessity test”.

Cartagena Protocol

• Rules for international trade in Living Modified Organisms (GMOs that have not been processed)

• LMOs exported “for international introduction into the environment” requires advance informed agreement

• LMOs for food, feed or processing require prior information through a “biosafety clearing house”

Disputes over GMOs

• Can the EC and other WTO members install a regulatory system for GMOs that allows precautionary measures?

• How will the Cartagena protocol be used since the US is not a signatory?

• How will expert opinion be used?• Will SPS or TBT be invoked – i.e. will the cases

be on food safety or labelling requirements?