From the USA with love: sharing home-grown hormones, GMOs, and clones with a reluctant Europe.

• Author: Carlarne, Cinnamon

1. INTRODUCTION II. DISCUSSION A. Hormones B. GMOs 1. The Cartagena Protocol and the World Trade Organization 2. The WTO Debate. 3. European Union and United States Regulations. a. European Union Regulations b. United States Regulations 4. Consumer Preferences and the Future of the GM Debate C. Cloned Products 1. The Cloning Process 2. Cloning in the European Union 3. Cloning in the United States 4. Cloning and Consumer Preferences III. CONCLUSION A. International Trade and Environment Tensions B. Questions Defining the Future of the Debate I. INTRODUCTION

   Biotechnology, trade, and culture are the elements from which modern nightmares are made. In the case of relations between the United States and the European Union (EU), (1) these nightmares occur with increasing frequency, intensity, and consequences. From the disputes over the use of hormones in beef and the trade in genetically modified organisms (GMOs) to the ongoing deliberations over the marketing and trade of food products derived from cloned animals, the United States and the EU repeatedly clash over the social, ethical, and environmental implications of producing, using, and trading the products of modern science. Much has been said about the United States-EU hormone dispute and much is currently being written about the global dispute over genetically modified (GM) products. Yet, neither of these disputes is close to being resolved. A preliminary decision by the U.S. Food and Drug Administration (FDA)--concluding that meat and milk from cloned animals is safe and, thus, might soon enter the U.S. food market without the need for labeling--will exacerbate preexisting tensions between the United States and the EU.

   This Article examines the impact of biotechnology on international trade relations between the United States and the EU. It focuses on how the introduction of meat treated with hormones, GMOs, and meat and dairy from cloned animals introduced into the streams of trade has affected United States-EU relations. The Article provides an overview of the beef hormones deliberations, examines the ongoing debate over GMOs, and analyzes how a final FDA decision regarding cloned meat and dairy products will influence current trade disputes. The Article reviews the disparate policies adopted by the United States and the EU. It then examines how and why consumer preferences in the United States and EU differ, and how these differences impact policy formulation. Finally, the Article considers whether the cloned foods debate is likely to shift the nature of the biotechnology-food debate and whether such a shift is desirable.

2. DISCUSSION

   In international relations, the United States and the EU are both uber-allies and uber-competitors. Since World War II, the United States and the countries that now form the EU have regularly acted together as a formidable force on international security issues--e.g., during the Cold War, the first Gulf War, and during other United Nations-sanctioned actions. In the realm of economics and international trade, the United States and the EU have worked jointly to liberalize international trade (e.g., General Agreement on Tariffs and Trade (GATT) and the World Trade Organization (WTO)) and increase global prosperity (e.g., Organization for Economic Cooperation and Development (OECD), World Bank, and International Monetary Fund (IMF)) while simultaneously competing ruthlessly for economic primacy.

   United States-EU interaction in the GATT-WTO system best exemplifies the intensely competitive nature of this relationship. Disputes between the United States and the EU have continually dominated both GATT and WTO dispute settlement systems. From 1980 to 1985, nearly thirty percent of all GATT lawsuits (twelve of forty-two) were between the EU (2) and the United States; (3) ninety percent of all GATT lawsuits (thirty-eight of forty-two) involved either the EU or the United States as one of the parties; (4) since the creation of the WTO in 1995 through 2002, disputes between the EU and the United States constituted nearly twenty percenty (48 of 251) of all WTO disputes (5) and nearly seventy-five percent of all WTO disputes (184 of 251) have involved either the EU or the United States as one of the parties. (6) Competition and conflict define United States-EU economic affairs and international trade relations. Cultural disagreement over trade in the products of modern science is the newest and one of the most volatile areas of modern United States-EU economic conflict.

   In the following sections, this Article analyzes two existing and one prospective United States-EU trade disputes. The three chosen cases are grouped together because they all involve the use of modern science to produce food products. In addition, all three cases highlight deep-rooted social and ethical--rather than primarily economic--reasons for policy differences. Thus, with each case, this Article examines the fundamental issue, the varying policy responses, and the: underlying factors determining regional responses. In particular, the Article will highlight how concepts of precaution and risk, levels of consumer awareness and interest, and interpretations and support for international legal regimes impact policy choice.

   1. Hormones

      The first case, the beef hormones dispute, involved the use of six natural and synthetic hormones in beef and beef products. The use, marketing, and trade of beef treated with synthetic and natural hormones highlights deep divisions between European and North American trade policy.

      The battle between the United States and the EU over the use of growth promoting hormones is not a recent phenomenon. For almost twenty years, the two powers have argued over the safety of using natural and synthetic growth-promoting hormones in cattle. During the 1980s, tensions simmered and finally came to a head in 1989, when the EU first banned the importation of beef products containing growth-promoting hormones. (7) Tensions further escalated in 1996 when the EU enacted Council Directive 96/22 banning the importation of beef or beef products from cattle that had been treated with hormones for the purpose of growth promotion. (8) In effect, the EU law banned virtually all imports of U.S. beef. After prolonged attempts to negotiate a compromise, in 1996, both the United States and Canada--whose imports were also affected--challenged the EU legislation in the WTO's Dispute Settlement Body. (9) The crux of the challenge was whether the EU ban could be justified on safety and human health grounds. (10)

      The beef hormones dispute highlighted underlying disagreements between the EU, the United States, and Canada not only over the safety of using natural and synthetic hormones in the production of beef, but over food quality and safety in general. Following the European "hormone scandals" of the 1970s and 1980s and the bovine spongiform encephalopathy (BSE) and foot and mouth crises in the 1990s and new millennium, European consumers became increasingly suspicious of the use of hormones to produce beef and beef products. And, "[a]s a result many European Union consumers no longer trust science and demand higher levels of protection in a form of product bans or labeling requirements." (11) European distrust of food quality runs deep, so deep in fact that subsequent to these scandals, in 2002, the European Parliament responded to consumer concerns about food safety by forming the European Food Safety Authority. (12)

      In the hormones case, prompted by feelings of distrust, consumers pressured the EU government to limit or ban the use and importation of growth hormones in cattle. The EU government responded to the pressure by banning the use of the six hormones in the EU (except for zootechnical and therapeutic reasons) and by banning the importation of all beef and beef products containing any of the six growth hormones. (13) While some of the EU's trade partners--e.g., Argentina and Australia--successfully accommodated the EU regulations by establishing systems for separating beef produced with and without hormones, both the United States and Canada refused to establish separate systems, citing the change as unnecessarily costly. Instead, the United States and Canada challenged the EU measures as contrary to WTO rules and regulations.

      The United States and Canada based their primary challenge on the terms of the Sanitary and Phytosanitary Agreement (SPS) (14) to the WTO. The SPS provides regulations for evaluating measures that deal with the use of additives, contaminants, toxins, and disease-carrying organisms in food, beverages, and feeds-stuffs. (15) Under the SPS, WTO members can adopt SPS measures that are "necessary for the protection of human and animal health" subject to six primary restrictions. (16) The measures must: 1) be no more trade restrictive than required to achieve an appropriate level of protection, (17) 2) be applied "only to the extent necessary," (18) 3) be based on "scientific principles" and "sufficient scientific evidence," (19) 4) be based on a risk assessment, (20) 5) meet the requirements of the Chapeau, (21) and 6) and meet the obligation to at least consider adopting international, rather than unilateral, SPS standards. (22)

      The hormones case turned on whether the EU ban was based on scientific evidence, as required by the SPS. Accordingly, the EU was required to show that its decision was based on "scientific principles" and "sufficient scientific evidence" (23)--i.e., the EU was not able to base its decision on considerations of consumer preference. Both the WTO Dispute Settlement Body Panel (Panel) and the Appellate Body found the ban to be incompatible with the EU's responsibilities under the WTO, with particular reference to the terms of the SPS.

      In the first instance, the Panel found that the EU's measures were arbitrary and unjustifiable and were not based on risk assessments, as required by the SPS. (24) The...