GMOs and the WTO Rules

1. GMOs and the WTO Rules Mark Halle Minsk, 24 October 2008

2. 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

3. 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.

4. 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

5. 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)

6. 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

7. 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”.

8. 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

9. 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

10. 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”.

11. 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”

12. 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?