4 Colum. J. Eur. L. 525 (1998)
Marsha A. Echols. Professor, School of Law, Howard Univerity.
Symbol of belonging, code of social or cultural recognition, cuisine continues to separate, more than it unites.
Local culture and attitudes influence regulations, an effect identifiable both in the European Union and in the United States. Such local influences are especially important to the development of measures regulating the production and sale of foods. Both the EU and the U.S. must assure their citizens of a safe food supply, while responding to significant differences in cultural influences and consumers ideas about what is safe to eat. Past food safety disputes between the EU and the U.S. and the recent frequency of food safety scares are indicators of likely future trade conflicts between the two entities.
Although international commerce in foods and ingredients has existed throughout human history, local traditions and attitudes about diet persist. “The cultural meanings instilled in human beings standardize their choices.” While many attitudes about food safety are based on tradition, today’s challenges are posed by modem food safety threats (such as Escherichia coli 0157:H7 and Bovine spongiform encephalopathy), quickly evolving food production technologies (such as the genetic engineering and irradiation of foods), the globalization of the food supply, and new questions about the safety of traditional methods of processing products (such as raw milk cheeses). These challenges are being addressed by both the EU and the U.S., but sometimes with markedly different regulatory approaches and results. The disparities in defining and reacting to food safety concerns can, intentionally or unintentionally, impede world trade in foods, as occurred in the Beef Hormones dispute between the EC and the U.S.
In spite of the globalization of the food industry and commerce in food supplies, strong local influences on food and dietary practices remain, especially in Europe. The culture and attitudes of European citizens have tended to favor traditional foods and minimal processing, while being skeptical of new technologies. This skepticism has slowed the Community’s broader regulatory process as well as particular governmental approvals in the EU. In contrast, Americans have been more willing to accept new technologies, an attitude that supports business innovation and a flexible regulatory system supportive of changing technology but skeptical of some traditional production processes. These different approaches in the EU and U.S. have regulatory and commercial consequences. During the lag between early, faster U.S. approval of a new technology and a later EC approval, U.S. businesses expect to have the opportunity to enter the new market without local competition.
The influence of culture on food safety measures is limited in the EU and the U.S. by constitutional and case law and by the Agreement on the Application of Sanitary and Phytosanitary Measures’ (“SPS Agreement” or “Agreement”). The Agreement limits the ability of each jurisdiction to enforce strictly local attitudes about food safety. Instead, it encourages reliance on a standardized, international, science-based approach to regulation. The Beef Hormones dispute, which concerned the use of growth hormones in cattle (a new production process), illustrates the response of the World Trade Organization (WTO) to protectionism disguised as culture or consumer preference regarding acceptable food safety risks. In that dispute, the EC’s import ban was rejected, but the door was left open to food safety measures that reflect a regionally or nationally determined “appropriate level of protection.”
Additionally, rapid developments in food production and processing technologies are changing farming and food processing. Regulators must balance the benefits of these changes in the globalizing food industry against consumers’ concerns about the risks presented by new diseases and production processes, without creating disguised barriers to trade and investment.