Global Foods, Local Tastes and Biotechnology: The New Legal Architecture of International Agriculture Trade

7 Colum. J. Eur. L. 423 (2001)

George E. C. York. J.D. Columbia University School of Law, 2001.

We were taken to a fast-food cafj where our order was fed into a computer. Our hamburgers, made from the flesh of chemically impregnated cattle, had been broiled  over  counterfeit charcoal, placed between slices of artificially flavored cardboard and served to us by recycled juvenile delinquents.
-– Jean-Michel Chapereau

Do you know on this one block you can buy croissants in five different places? There’s one store called Bonjour Croissant. It makes me want to go to Paris and open a store called Hello Toast.
–- Fran Lebowitz

Symbol of belonging, code of social or cultural recognition, cuisine continues to separate more than it unites.
-– Sophie Bassis. Quoted in Marsha Echols, Food Safety Regulation in the European Union and the United States: Different Cultures, Different Laws, 4 Colum. J. Eur. L. 525 (1998).

Worth roughly $450 billion and accounting for an average of 12 percent of the total volume of world trade in each of the past five years, agricultural product exports have emerged as one of the most critical and controversial variables in the calculus of international trade. For the United States in particular, access to international export markets has become an increasingly essential mechanism by which prices and revenues are sustained, especially as the U.S. agricultural industry is growing faster than domestic food and fiber demand. Estimated to be worth $53 billion in 2001, U.S. agricultural exports account for between 13 and 14 percent of total global exports in this sector. In the last 30 years, export revenues have represented between 20 to 30 percent of U.S. farm income and are projected to remain that way until 2010. For some commodities, such as rice, cotton and wheat, trade dependency is relatively high, with exports approaching 50 percent shares of U.S. production. With respect to the overall trade balance in agricultural products, U.S. agricultural exports have exceeded agricultural imports since the late 1950s, creating a trade surplus in agricultural products while trade deficits continue to persist in other sectors.

Increasingly, the maintenance of this positive U.S. agricultural trade balance has become dependent on the world’s second largest agricultural products exporter, the European Union (EU). By comparison to the U.S., the EU’s most recently published agricultural exports were valued at over $45 billion, while its agricultural imports were worth nearly $50 billion. Of this total, the U.S. accounted for just under $7 billion in export revenues and just over $7 billion in import costs.’ In the year 2000, the total value of the transatlantic trade in agricultural products was worth more than $15 billion. Logically, as in the U.S., food production is one of the most important industries in Europe. It has been estimated by the European Commission that 20 percent of the disposable income of every household in the EU is spent on food and drink.” Yet, unlike the U.S. agricultural production sector which consists of a fewer number (2 million) of larger (an average of 207 hectares) farms, the EU’s agricultural sector is comprised of a relatively greater number (7.3 million) of smaller (an average of 18 hectares) farms. Such structural differences between the U.S. and the EU agricultural sectors reveal a deeper dichotomy that has brought agricultural market access to the top of the transatlantic agenda.

Concomitant with the growing importance of international agricultural exports is the fact that the international community is paying greater attention to food safety and its regulation. Yet, while there is an emerging consensus as to the significance of the safety-related aspects of agricultural trade, there continues to be significant disagreement, particularly between the U.S. and the EU, with regard to the means by which the end of food safety is to be achieved. Thus, “[i]n spite of the globalization of the food industry and commerce in food supplies, strong local influences on food and dietary practices remain,” which have generated notable regulatory and commercial differences from one State to the next. As a combination of preexisting local attitudes and reactions to the rise of international agricultural exports, the divergent approaches taken by States to the question of food safety have, however, produced profound effects on international agricultural trade itself. In other words, “differences among national food safety regulations can be readily deployed as non- tariff barriers to trade, triggering international conflicts over food safety requirements.

Nowhere is the convergence of, and conflict between, international agricultural trade and food safety regulation more dramatically demonstrated than in the case of biotechnology. Also referred to as genetic engineering, transgenic technology, recombinant DNA technology, genetic modification and bioengineering, biotechnology has brought about a revolution in food production which, in turn, has brought international agricultural exporters to the brink of trade war. Indeed, the debate over biotechnology highlights the dialectical nature of the international trading system as a whole – i.e. a product of the competing values of globalization and liberalization, on the one hand, and sovereignty and subsidiarity, on the other. Despite the promise it presents not only for farmers and the biotech and food industries but for global food security, health, the developing world and the environment, biotechnology may still founder on the shoals of local preference manifested in the form of food safety regulation. Ultimately, then, for biotechnology to prevail, its communitarian impulses must be adequately understood and addressed in light of its cosmopolitan ambitions.

In order to assess the future of international trade in biotechnology, this paper will address the following four sets of questions: (1) what is biotechnology and what are the benefits and potential risks associated with genetically modified organisms (GMOs), (2) what are the relevant national regulatory environments – focusing primarily upon the U.S. and the EU – and how do they compare with regard to the means by which they address biotechnology; (3) what are the international instruments and institutions involved and to what extent can, and have, they contributed to the resolution of this issue; and, normatively, (4) what should the policy of the U.S. be toward trade in agricultural biotechnology and how should this policy be pursued, both domestically and abroad.

To address these questions in the appropriate context, this paper will analyze the law and policy involved in the international trade of genetically modified (GM) products. Part II will examine the production, economic, health, environmental, and developmental aspects of the current debate over biotechnology and how these various aspects have influenced trade in GMOs. While Part III will discuss various national biotechnology regulatory regimes, principally those of the U.S. and the EU, Part IV will consider the multilateral framework in which GMOs and trade converge and assess the effectiveness of the international instruments and institutions involved therein. Finally, Part V will propose a set of recommendations for the current administration regarding U.S. trade policy vis-6t-vis biotechnology.