The issue arises in other contexts, as well. The US is a major participant on an ongoing basis in a wide variety of bilateral and multilateral harmonization activities.
2.
The Codex Alimentarius is a United Nations organization jointly funded by the World Health Organization (WHO) and the UN Food and Agricultural Organization (FAO). The Uruguay Round Final Draft Final Sanitary and Phytosanitary Measures Text would establish Codex standards as the international food safety standards of reference. The Text would create a presumption of GATT compliance for national standards that are equivalent to Codex standards and urge international harmonization to these standards.
3.
The US General Accounting Office is an agency of the US Congress. One of its functions is to prepare impartial reports at the request of members and committees of the Congress.
4.
International Food Safety: Comparison of US and Codex Pesticide Standards, August, 1991, GAO/PEMD-91-22 (hereinafter,“report”), p. 9.
5.
Some have been critical of the provision of the Text that requires higher-than-international standards to be “science-based.” They view this requirement, among other things, as restrictive of the US right to maintain standards more-protective of health than the international norm. However, under the organic statutes governing the promulgation of US food safety standards, it is virtually impossible to promulgate a standard not based on scientific evidence that could withstand the initial judicial review before the US courts to which such standards may be ordinarily subjected. The “science-based” requirement of the Text does not require a government to justify a standard by demonstrating that all of the scientific evidence supports the standard, nor does it establish any specific burden of scientific evidence that must be met. If that were the meaning of the language, a specific burden such as “weight of the scientific evidence” or “preponderance of the scientific evidence” would need to appear in the Text. But there is none; the language of the text does not preclude the US from choosing any reasonable scientific basis in contra-distinction to any other, competing scientific conclusions the Text might have chosen. Thus, there is no basis for characterizing the “science-based” requirement as creating a “dueling science” basis for striking down a stronger-than-international standard. Contrary to these criticisms of the Text, the “science-based” requirement might well be characterized as one that would strongly support a higher-than-international US standard against a challenge by another country whose goods were excluded from import under the standard.
6.
The non-numerical terminology used in comparing these standards must be observed carefully. Because less pesticide exposure is presumptively more protective of health, a standard that is more protective may be said to be “lower,” that is, to permit a lower amount of pesticide on the commodity which an MRL governs. However, this may readily be misunderstood as meaning that a “lower” standard is a “weaker” standard in terms of protecting health. Therefore, throughout, we refer to the standard that permits the lesser pesticide residue on a commodity as “more stringent,” “more strict,” or “more protective,” and to the standard that permits the greater amount of residue as “less stringent,” “less strict,” or “less protective.”
7.
References to pesticide “standards,” “measures,” or “tolerances” are to maximum residue levels, or “MRLs.” These are the limits under which enforcement measures are taken. “ADIs,” or Acceptable Daily Intakes, another form of datum often cited, is an intermediate calculation made for the purpose of setting an MRL.
8.
Report, P. 4.
9.
The US has little incentive to harmonize to an international commodity-MRL for a domestically produced commodity in which it has little trade. In instances where producers export little or none of the commodity, they have no need to meet a more health-protective standard in order to gain access to foreign markets. And the lack of imports creates no trade-justifiable basis for changing the standard where the international standard is lower.
10.
Other than carcinogenicity, pesticides may pose such serious risks as neurological effects and birth defects. US standards are considered more highly protective against the risk of cancer and less protective against these other risks.
11.
Report, P. 4. The report compared the more than 3,300 Codex residue-by-commodity tolerances with the more than 8,500 US tolerances. In the 1,267 pesticide-by-commodity combinations that the report found susceptible of comparison, the US had more health- protective MRLs for 19 percent of the cases, Codex for 37 percent. Id.
12.
Note, however, that DDT is banned from use in the US primarily for its environmental, not its human health, effects.
13.
Report, Pp 42, 44.
14.
Report, P. 32; see also P. 34.
15.
This would assume, of course, that the US commodities contained residues in excess of a more strict Codex standard. An MRL represents only the maximum allowable residue on samples of a commodity. It does not follow that all or any samples of a given shipment will in fact bear the maximum allowable residue, ever or at the time of “farm gate” sampling, which is the point of domestic enforcement. Crops may or may not be treated with a given pesticide at all; those that are may be treated with differing concentrations and the applied pesticide may partially dissipate during storage. See report, Pp. 17–18. Any given unit of a US-exported commodity treated within the limits of a less-stringent US EPA MRL might or might not meet the tougher Codex standard.
16.
Countries seeking to use the greater stringency of their health standards per se as non-tariff barriers to trade should not be able to do so under the Draft Final Text. Rejection of an import that complies with country-of-import standards, simply because an applicable health standard of the country of origin is less strict than that of the intended country of import would seem to be a measure taken primarily for the purpose of trade discrimination. This is precisely the sort of practice the Uruguay Round seeks to prevent. Some hypothetical arguments to justify such a discriminatory practice within the textual exceptions could be made, but the logical response to their being sustained, should that be the outcome, would be for the country of origin to harmonize to the higher health standard in order to facilitate its valued exports.
