Trade deal attack on safe food and sustainable agriculture

Congress is considering Fast Track trade promotion legislation that is seen as a prerequisite for the approval of two major trade agreements: the Trans Pacific Partnership and the Transatlantic Trade and Investment Partnership. If approved, the two deals would undermine government safeguards related to food safety, food product labeling and gene patents.[1] The trade agreements are being negotiated and drafted in secret with the assistance of lawyers and lobbyists from global agribusiness behemoths such as ConAgra, Cargill, Archer-Daniels-Midland, Smithfield and the Biotechnology Industry Organization.

“Fast Track” is legislation that rushes trade deals through Congress and sharply limits Congress’ authority to oversee debate and amend trade agreements. Fast Track legislation would force the TPP and TTIP deals through on a quick up-or-down vote with no amendments.[2] The historical record shows that it is difficult to gain congressional approval of a major trade deal without fast track authority and difficult to stop a deal under fast track rules.”[3]

In this first of a series of blogs on the Fast Track attack on safe food and sustainable agriculture, we look in depth at the all-important TPP and TTIP chapters on so-called “sanitary and phytosanitary measures,” aimed at deregulating government safeguards related to food safety, animal welfare and plant health. 

TPP and TTIP provisions on “sanitary and phytosanitary measures” aim to roll back government regulations related to food safety, animal welfare, plant health 

The term “sanitary measures” is international trade law jargon for public health policies and regulations related to food safety, while “phytosanitary measures” relates to animal welfare and plant health regulations. Such government regulation is anathema to global corporations engaged in industrial scale agriculture and mass manufacturing of food products. They seek to use international agreements like the TPP and TTIP to roll back SPS regulations, which they regard as “non-tariff barriers to trade.” This is clever branding: the TPP and TTIP chapters on sanitary and phytosanitary measures, also known as SPS, are all about deregulation and have nothing to do with international trade per se.  

Sanitary measures. Sanitary measures are public health policies and regulationsto ensure that food is safe, and nutritious. Such government measures are necessary because cancer and other life threatening diseases may be caused by food containing pesticide residue, heavy metals or chemicals. Death and disease may also result from food carrying viruses like the one responsible for hepatitis A, parasites like fish-borne trematodes, and bacteria like salmonella or listeria.

Governments may also adopt sanitary measures in order to promote good nutrition. Severe health risks and premature death are associated with a diet of processed foods and beverages loaded with sugar, fats, sodium or chemicals. Heart disease, stroke, diabetes, colon cancer and osteoarthritis are at near epidemic rates among the overweight and obese who consume such unhealthy products. A diet of salty foods is associated with high blood pressure, heart attack and stroke. Excessive meat consumption also presents risks.

Phytosanitary measures. These are government safeguards related to animal welfare and plant health. In terms of animal welfare, a proto-typical government regulation in this area might address animal welfare issues related to large confined animal feeding operations. CAFOs are inhumane, resulting in stress, pain and suffering for the cows, pigs, and chickens, while toxins from accumulating manure spread disease among the animals. Fattening them with feed grain rather than letting them graze also spreads disease. Consequently, animals are treated constantly with antibiotics, resulting in antibiotic-resistant bacteria which present an acute human health risk. The animals are also dosed with pesticides, chemicals and growth hormones, all of which may also be associated with human health risks.

As an example of a plant health issue, consider the problem of “monoculture” and the survival of biodiverse plant species, an issue that may require government intervention. Only a few species of plants are used in most modern farming operations. The UN Food and Agriculture Organization reports that 12 plant species provide 75 percent of the world’s supply of food. Such genetically similar plants are at risk as the climate changes and generates more extreme weather. Catastrophic crop failure and hunger, especially in the developing world, could become more widespread. Such monoculture crops are also vulnerable to disease and insects.

How will the TPP and TTIP chapters on sanitary and phytosanitary measures work?

The goal of TPP and TTIP negotiators is to include “SPS-plus” provisions in TTIP and TPP that are even more protective of industry interests than even strict World Trade Organization standards.[4] This would make it easier to challenge safeguards that fall into the categories of sanitary measures related to food safety, such as bacterial contamination, and phytosanitary measures related to animal and plant health, such as animal diseases. Here are a few of the most dangerous elements of the SPS chapters.

A ceiling, not a floor. The purpose of the TPP and TTIP chapters on sanitary and phytosanitary measures is to put a ceiling on such government safeguards and to enforce this downward harmonization of standards with trade sanctions like retaliatory tariff increases authorized by trade tribunals. TPP and TTIP food safety standards are expected to incorporate the standards of the Codex Alimentarius, an industry dominated group that often recommends low standards.

The “necessity test.” The SPS chapters in the TPP and TTIP also are likely to contains a strict “necessity test” that must be met in order for government food safety or animal welfare regulations to pass muster in trade litigation. In other words, they must not be more trade restrictive than necessary, and if a more business-friendly standard could be hypothesized, they fail the test.

Mutual recognition of standards: a race to the bottom. Furthermore, countries would be encouraged to recognize the equivalence of each others’ safety standards.

Cost-benefit analysis. An assessment in the regulatory review process established in the TPP and TTIP of the economic cost of food safety and animal health regulations to industry relative to hypothetical and less restrictive alternative regulations would likely by required. Rather than food safety experts, trade lawyers and economists, advised by industry representatives, would then judge the technical feasibility of achieving food safety goals in light the economic cost to industry.

SPS-plus rules even more restrictive than WTO standards, TPP and TTIP promise a trade law attack on regulation of genetically engineered food and other food and agricultural products. The history of successful U.S. suits in the WTO challenging European policies on genetically engineered organisms and food safety under the WTO Sanitary and Phytosanitary Measures Agreement should be a warning.[5] TPP and TTIP provisions based on the broad concept of SPS-plus are even more of a threat to food safety regulations than WTO rules.

The U.S. has targeted more effective EU food safety standards.

The U.S. Trade Representatives’ Report on Sanitary and Phytosanitary Measures targets EU safeguards related to GE products as “substantial barriers to trade.”[6] This threat is not limited to genetically engineered food products.EU food safety measures have been targeted as trade barriers in the USTR SPS report, including restrictions on imports of beef treated with growth hormones, chicken washed in chlorine, and meat produced with growth stimulants (rectopamine). France in particular is targeted for its 2012 ban on use of materials produced using Bisphenol A (which is linked to brain and hormone problems in fetuses and children) in food contact surfaces for food products designed for infants, pregnant women and lactating women.

Released text of EU proposal for TTIP SPS chapters confirms fears.

 Text of EU proposals for TTIP for an SPS chapter was first leaked and later released formally to the public. The draft EU proposals for  the central text of the TTIP chapter on food safety and animal and plant health reveals a plan for an SPS chapter that works in tandem with TTIP  regulatory review provisions, which would lower current European standards and likely preclude higher standards on both sides of the Atlantic by establishing:

• A form of mutual recognition of the safety of imported food from Europe in the U.S. and vice versa that reduces standards to the lowest levels;[7]
• An objective that food safety safeguards should generally be enforced in the least trade restrictive manner, rather than the manner that is most protective of public health and the environment; 
• A system of “exporter country certification” that would sharply reduce food safety inspections at ports of entry.
• A new transatlantic regulatory review body dominated by trade officials and agribusiness rather than safety experts, to pass judgment on all new food safety and animal welfare regulations in order to promote trade “to the greatest extent possible.”[8]

Other chapters in the Atlantic & Pacific trade deals are also a threat

Both the TPP and TTIP also contain chapters on Technical Barriers to Trade and Trade in Goods that threaten food product labeling. Similarly, their Intellectual Property chapters would allow global corporations to patent and take title to human genes as well as the genes of animals and plants. Finally, there is a possibility that the TPP and TTIP chapters on government procurement might be used to attack school lunch and other nutrition programs that give a preference to healthier, locally produced food.

There are also a few TPP and TTIP chapters that actually do relate to trade like the ones on trade in goods and provisions on “at the border” inspection of imported goods. The TPP and TTIP could undercut food safety enforcement by granting mutual recognition of other countries’ inspection of goods or simply by overwhelming understaffed inspectors with a flood of unsafe food exports.[9]

TPP and TTIP chapters can be effectively enforced by trade tribunals and in the regulatory review process.

Violation of SPS, TBT, IP or other rules can result in an international lawsuit brought by another party to the TPP or TTIP agreement in so-called state-to-state dispute resolution proceedings before a tribunal of trade lawyers. These international tribunals can slap tough sanctions like higher tariffs on any country that fails to deregulate. This would also very effectively chill new legislative and regulatory initiatives to improve the safety of the food we eat and the health of people, animals and plants. 

Deregulation is not only enforced by international trade tribunals but also by putting in place regulatory review procedures that can stop new food and agriculture regulations from being promulgated and hamstring efforts to enforce existing regulations.

Friends of the Earth is fighting back

The ways in which our farms are managed and the ways in which our food is produced have a chain reaction of consequences for our health and the environment. For just one striking example, the way meat is produced on factory farms affects human health and animal welfare and is related to diet-related disease and animal cruelty. Animals confined in massive feeding operations typically eat a diet of genetically-modified grains and legumes grown with large amounts of toxic pesticides and fertilizer. Mountains of toxic manure pollute the air and water. Overuse of antibiotics contributes to the rise of antibiotic resistance, one of our most serious public health problems. Massive animal feeding operations are also a major driver of climate change, habitat destruction and deforestation.

This is the reason why Friends of the Earth is leading the charge to stop Fast Track trade promotion legislation, the TPP with Japan and other Pacific Rim countries, and the TTIP deal with the European Union. We must ensure our food system is just and sustainable. We want to protect family farmers, food product safety and sustainable agriculture. We want international rules on trade to embrace the safe and precautionary management of farming, animal husbandry and food manufacturing technologies. 

SELECTED ENDNOTES

[1] The United States is negotiating the TPP with, Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, and Vietnam. But, that would only be the start. The TPP is conceived as a “docking agreement, which other countries could join later,” without the need of significant congressional review. The Transatlantic Trade and Investment Partnership agreement is being negotiated with the European Union, consisting of 28 nation-states.

[2] Presidential fast track authority for negotiating trade agreements and its process for congressional approval eviscerates Congress’ constitutional authority and political influence over trade agreements, delegating them improperly to Michael Froman, the U.S. Trade Representative. Fast track hands over to the executive branch powers that the founders of our constitution intended for Congress to exercise, including (1) the power to determine which countries join trade negotiations with the U.S., regardless of whether they are repeat violators of  environmental and human rights standards; (2) the power to finalize the legal text of trade agreements before Congress votes;(3) the power to write domestic legislation implementing a trade deal by rolling back environmental safeguards and other public interest measures; (4) the power to circumvent ordinary congressional committee review and submit the legislation directly for a mandatory and expedited floor votes in the House and Senate; (5) the power to override House and Senate control of their schedules for floor votes; (6) the power to ban any amendments to a trade agreement; and he power to override other normal congressional voting procedures, including the Senate’s super-majority (60 vote) requirement to end a filibuster (extended debate).: /news/archives/2013-10-stop-fast-track-authority-for-trans-pacific-trade-de#sthash.1gS3eT9N.dpuf

[3] To make matters worse, these trade deals are typically negotiated in secret, behind closed doors. All this makes for a very undemocratic process in which the interests of corporations – rather than the public – are served.  As the Nobel Prize winning economist Joseph Stiglitz stated in a letter to TPP negotiators, “The decision to make the negotiating text secret from the public (even though the details are accessible to hundreds of advisors to big corporations) makes it difficult for the public to offer informed commentary.  Joseph Stiglitz letter to TPP negotiators December 6, 2013. http://keionline.org/sites/default/files/jstiglitzTPP.pdf

[4] U.S.- European Union High Level Working Group Report on Jobs and Growth, February 2013, http://trade.ec.europa.eu/doclib/docs/2013/february/tradoc_150519.pdf, p.4.

[5] Public Citizen, Backgrounder: The U.S. Threats Against Europe’s GMO Policy and the WTO SPS Agreement, http://www.citizen.org/documents/GMObackgrndr.pdf; Doug Palmer, US farmers urge sanctions against EU’s GM crop ban, Reuters, July 26, 2010, available at http://in.reuters.com/article/2010/07/27/idINIndia-50441920100727.

[6] Available at, http://www.ustr.gov/sites/default/files/2013%20SPS.pdf.

[7] Id. 

[8] For example. National Pork Producers Council in the US argues: ”As part of the TTIP, U.S. negotiators should seek and receive a broad recognition by the EU of the equivalence of the U.S. pork production and processing system in ensuring product safety. The United States has sought and received such recognition by other FTA partners. A copy of the exchange of letters with Vietnam is provided as an example.” http://www.nppc.org/wp-content/uploads/P-National-Pork-Producers-Council-USTR-2013-0019-TTIP-5-10-13.pdf

[9] Draft text of main provisions of E.U. proposal for TTIP chapter an Sanitary and Phytosanitary Measures,  http://trade.ec.europa.eu/doclib/docs/2015/january/tradoc_153026.pdf; http://www.iatp.org/files/2014.07_TTIP_SPS_Chapter_0.pdf