Much Ado About Nothing: Does the Death of the Trans-Pacific Partnership Affect Global Food Safety?

• Date: 01 May 2017

5-2017 NEWS & ANALYSIS 47 ELR 10439

Much Ado About

Nothing: Does

the Death of the

Trans-Pacif‌ic

Partnership

Affect Global

Food Safety?

by Carrie A. Scrufari

Carrie A. Scrufari, Esq., is a Professor at Vermont Law School.

Summary

With continued globalization of the food system and

the increasing number of agricultural products traded

on the world market, concerns regarding food safety

standards in other countries led Congress to pass the

Food Safety Modernization Act (FSMA) to better

guard against outbreaks of foodborne illnesses. As the

Food and Drug Administration (FDA) nalized the

FSMA rules just last year, food safety experts began

to fear that those new regulations could be undone if

Congress ratied the Trans-Pacic Partnership (TPP).

is may seem a moot issue now that President Don-

ald J. Trump has withdrawn the United States from

the TPP, but the question is still relevant. is Article

argues that the controversy has largely been much

ado about nothing because the General Agreement

on Taris a nd Trade (GATT)—the trade agreement

in eect among all 12 former TPP signatories, which

will continue operating in the TPP’s absence—pro-

vides adequate protection of the United States’ ability

to regulate its food supply through the implementa-

tion of domestic laws, such as the new FSMA rules.

Food safety involves everyb ody in the food chain.

—

ere is no sincerer love than the love of food.

—George Bernard Shaw

Lisa arrives home af ter a 12-hour workday, having

resisted the lure of the drive-thru. With her stomach

gurgling, she begins rummaging around her freezer’s

contents. She sett les on tilapia. Lisa recalls her grandmoth-

er’s voice at the kitchen table of her youth declaring that

Lisa could not be excused from dinner until she ate all her

vegetables. She takes out a package of frozen spinach as

well. As her dinner defrosts, she pours a glass of apple juice,

turns on the evening news, and prepares a sa lad. From the

depths of the at screen, a panel of experts debate whether

trade deals such a s the proposed Trans-Pacic Partnership

(TPP) will boost global food safet y standards or erode U.S.

safety regulations. Lisa vaguely recalls this news program

when, two days later, gut-wrenching cramps seize her stom-

ach and she is homebound—more specically, bathroom-

bound—for the next two days. A subsequent doctor’s visit

reveals that Lisa wa s struck by listeriosis—a case of food

poisoning caused, in this instance, from consuming con-

taminated spinach.

Listeria is a deadly bacterium, sickening 1,600 people

each year by causing vomiting, diarrhea, fever, and mus-

cle aches.1 Listeria resides in anima ls’ digestive tracts, and

when fruit or vegetable crops are contaminated with a ni-

mal waste, the bacteria can be tra nsferred to humans.2

While leafy greens are vital for health and conta in a

wealth of nutritive properties, they are also responsible for

nearly a quarter of the 9.6 mi llion cases of foodborne ill-

ness that occur each year.3 Leaf y greens, such as spinach,

that become contaminated with listeria are particularly

problematic because the bacteria can be dicult to wash

o the fresh leaves.4 Moreover, in t he case of frozen spin-

ach, listeria can survive after cooking if t he food is not

heated thoroughly, and can even continue reproducing in

the freezer.5

e news is replete with storie s of food contamination,

poisonings, and pathogen outbreaks. In t he past decade,

U.S. consumers have experienced severe illnesses after

consuming contaminated peanut butter, spinach, ca nta-

1. See Sydney Lupkin, Amy’s Kitchen Recall: What to Know About Spinach

 , ABC N, Mar. 25, 2015, http://abcnews.go.com/

Health/amys-kitchen-recall-spinach-listeria-outbreak/story?id=29894726.

2. See id.

3. See Bill Tomson, Vegetables Big Culprit in Food Illness, W S. J., Jan. 29,

2013, https://www.wsj.com/articles/SB100014241278873243292045782

71970675684826.

4. See Lupkin, supra note 1.

5. See id.

Copyright © 2017 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.

47 ELR 10440 ENVIRONMENTAL LAW REPORTER 5-2017

loupe, eg gs, seafood, and a variety of other domestic ally

produced staple fo ods.6 Imported products have a lso

caused illness and shaken consumer condence, espe-

cially imports from China—includi ng deadly pet fo od,7

antibiotic-lac ed honey,8 contaminated baby formula, tofu

fermented with sewer water, a nd gutter oil posing a s veg-

etable oil.9

Since 2008, Chinese “food ascoes included water-

melons explodi ng from too much growth chemical,

borax in beef, bleach in mushrooms, soy sauce made with

arsenic and from human hair, and ‘eggs’ created using

chemicals, gelatin and paran.”10 Such stories demon-

strate the need for strong food sa fety regulations, such as

those in t he recently nali zed Food Sa fety Moderniza-

tion Act (FSMA) rule s. ey also underscore the impor-

tance of prote cting the rights a nd abilitie s of countrie s

on the global ma rket to continue implementing measure s

for the hea lth a nd sa fety of t heir citizens. Without food

safety regulator y mechan isms at both the poi nt of pro -

duction and the port of entry, “[t]he regulatory, politic al,

and economic pitfalls of one nation can become t he bur-

den of an i mporting nation.”11

6. See Josh Funk, , W. P, Feb. 15,

2007, http://www.washingtonpost.com/wp-dyn/content/article/2007/02/

15/AR2007021500597.html;    E. coli 

     , C  D

C  P, Oct. 6, 2006, https://www.cdc.gov/ecoli/2006/

spinach-10-2006.html; Christina Caron,   

, ABC N, Sept. 28, 2011, http://abcnews.

go.com/Health/cdc-listeria-outbreak-deadliest-decade/story?id=14622507;

Recall Expands to More an Half a Billion Eggs, NBC N, Aug. 20,

2010, http://www.nbcnews.com/id/38741401/ns/health-food_safety/t/

recall-expands-more-half-billion-eggs/#.WJxgATvrWI0; Marc Santora, Fish

, N.Y. T, Jan. 31, 2013,

http://w ww.nytimes.c om/2013/0 2/01/nyre gion/tox ic-sh-c aused-foo d-

poisoning-outbreaks-report-says.html; Drew Falkenstein,  

 , F P J., Dec. 13, 2010, http://www.

foodpoisonj ournal.com/ foodborne-i llness-outb reaks/2010s- major-food-

recalls-and-outbreaks/#.WJxipzvrWI0.

7. Bryan Walsh, , T,

May 21, 2014, http://time.com/107922/china-pet-food-contamination-

recall-video/.

8. Honey Tainted by Antibiotics, BBC News, Feb. 19, 2002, http://news.bbc.

co.uk/2/hi/health/1829926.stm; Andrew Schneider, Asian Honey, Banned

  , F S N, Aug. 15,

2011, http://www.foodsafetynews.com/2011/08/honey-laundering/#.WFy

Ad8frWI0; Helena Bottemiller, “Honeygate” Sting Leads to Charges for Illegal

Chinese Honey Importation, F S N, Feb. 26, 2013, http://

www.foodsafetynews.com/ 2013/02/honeygate -sting-leads-to- charges-for-

illegal-chinese-honey-importation/#.WFyAusfrWI0; Andrew Amelinckx,

    , M. F, Feb.

3, 2015, http://modernfarmer.com/2015/02/feds-seize-2-million-worth-

illegal-chinese-honey/; News Release, U.S. Immigration and Customs

Enforcement, HIS Chicago Seizes Nearly 60 Tons of Honey Illegally

Imported From China (May 5, 2016), https://www.ice.gov/news/releases/

hsi-chicago-seizes-nearly-60-tons-honey-illegally-imported-china.

9. Christina Rice,    , F S

N, Apr. 14, 2015, http://www.foodsafetynews.com/2015/04/whats-in-

your-food-a-look-at-food-fraud/#.WFyCq8frWI0.

10. Andrew Portereld, “Chemical Free” Organic Industry’s Unacknowledged

“Pesticide Problem,” Genetic Literacy Project, Feb. 20, 2017, https://www.

geneticlite racyproject.org/2 017/02/20/chemica l-free-organic-in dustrys-

unacknowledged-pesticide-problem/.

11. Jason J. Czarnezki et al., , 25

G. I’ E. L. R. 261 (2013), available at http://digitalcommons.

pace.edu/lawfaculty/924/.

With the continued globalization of the food system

and the increasing number of agricultura l products traded

on the world market, concerns regarding the food sa fety

standards in other countries led the U.S. Congress to pass

the FSMA to better secure domest ic and foreign markets

against outbreaks of foodborne illnesses. As the U.S. Food

and Drug Administration (FDA) nalized the FSMA rules

just last year, food safety exper ts bega n to fear that those

new regulations could be undone if Congress ratied the

TPP. Whi le a myriad of other controversies surrounded

the TPP, food advocates were asking, “What eect could

the TPP, if implemented, have on food safety, for better or

for worse?”

At rst blush, t his que stion may seem a moot issue

now that President Donald J. Trump has withdrawn U.S.

participation f rom the de al, but t he que stion is still rel-

evant. If the TPP wou ld have had little to no eect on

global food safet y, then the debate raging around the

trade deal in this respect has largely been much ado about

nothing. If the T PP would have weakened food safety

standa rds, a s some ex perts feared, then so much the bet-

ter for its death and s wift buria l under the new Admin-

istration. But if the TPP would have strengthened globa l

food safet y standards, then those more laudable aspects

of the deal shou ld be incorporated into future trade deals

in the event the Trump Administ ration attempts to nego-

tiate one.

is Article argues that the controversy surrounding

the TPP’s potential impact on food safety has largely been

much ado about nothing, because the General Agreement

on Taris and Trade (GATT )—the current trade agree-

ment in eect among all 12 former TPP signatories and the

deal t hat will continue operating in the TPP’s absence—

provides adequate protection of the United States’ ability

to regulate its food supply through the implementation of

domestic laws, such as the new FSMA rules.

Accordingly, the A rticle unfolds as follows: Part I pro-

vides a discussion of the newly nalized domestic U.S. leg-

islation (the FSMA rules), particularly the Foreign Supplier

Verication Programs (FSVP) rule as the one most relevant

to the safety of imported food products. Part II provides an

overview of GATT and related World Trade Organization

(WTO) agreements, namely the Sanitary and Phytosani-

tary (SPS) Agreement and the Technical Barriers to Trade

(TBT) Agreement, and examines possible challenges to

the implementation of the FSVP under those a greements.

is part ana lyzes the likelihood of success if a country

chose to assert before the W TO that the new FSMA rules

violated certain trade obligations contained within GATT,

and ultimately concludes that such a challenge is not likely

to succeed. Part III discusses some of the provisions in the

proposed TPP that were relevant to food safety, explores

advocates’ criticisms t hat those provisions would have

eroded the United States’ ability to insist on basic food

safety standards, and considers how, if at all, the provisions

of the TPP would have changed the rules of the game. Part

IV concludes.

Copyright © 2017 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.