The Food Safety Modernization Act: A Barrier to Trade? Only if the Science Says So

摘要

The US Congress recently passed the FDA Food Safety Modernization Act.1 This law aims to improve the safety of food that appears in the US market.2 It imposes inspection standards on food producers and processors,3 creates a tracking system,4 and grants the Food and Drug Administration (FDA) powers to remove contaminated products from the market.5 Title III of this law also impacts importers, creating a verification program,6 certification requirements,7 and mandated regular audits8 for food enteringthe US market from abroad. The provisions of Title III regarding importers create new barriers to the US market for foreign producers, which may, depending on how they are implemented, violate World Trade Organization (WTO) agreements.The WTO is an intergovernmental organization that aims to facilitate free trade among its member-states. The WTO operates on the basis of a few foundational principles. The most important principle for this paper is the Principle of Nondiscrimination inTrade. Article III of the General Agreement on Tariffs and Trade imposes a national treatment standard on trading countries.9 This means that an importer's goods must be treated the same as the goods of a domestic producer. If the FSMAplaces greater restrictions on foreign goods than are imposed on domestic goods, the US is in violation of its international legal obligations and faces the possibility of retaliatory measures by its trading partners.10 Additional restrictions for foreign producers are allowed, however, if based on scientific evidence.11 Because, under WTO rules, the validity of a law like the FSMA depends on the strength of the science justifying it, the scientific risk assessment method employed in implementing the law is a crucial partof the analysis. Therefore, to determine if there is a violation of WTO rules, the FSMA and the assessment tools used by the US to evaluate the risk posed by imported food must be assessed in light of the WTO's scientific requirements.