The WTO's Interpretation of the SPS Agreement Has Undermined the Right of Governments to Establish Appropriate Levels of Protection against Risk

The preamble to the Agreement on Sanitary and Phytosanitary Measures (SPS Agreement) explicitly recognizes the right of each government to establish its own appropriate level of protection against risk.(1) Although there is no debate that the SPS Agreement is intended to protect this right, the interpretation of the SPS Agreement by the dispute resolution panel and the Appellate Body in the EC--Hormones case(2) created serious obstacles to the ability of governments to establish such levels of protection. In that case, the United States and Canada challenged Europe's ban on the import of beef raised using growth hormones. The dispute panel was presented with substantial evidence, most of which has been accepted by the International Agency for Research on Cancer and the U.S. Food and Drug Administration (USFDA), that treatment of cattle with growth hormones raised the level of those hormones in the flesh of the treated animals and that exposure to each of the hormones at issue increased the incidence of cancer in laboratory animals.(3) The primary focus of the dispute concerned whether these facts constituted a justification for the European ban, as required by Article 2.3 of the SPS Agreement. Europe presented the opinions of scientists that the evidence was sufficient to conclude that eating hormone-treated meat constituted an increased risk to humans. The United States and Canada presented contrary opinions, constituting the majority view and including the opinion of the USFDA and the international food safety standard-setting institution (the Codex Alimentarius Commission), that there was no convincing evidence of an increased risk of cancer when hormone-treated meat is consumed by humans. The WTO dispute panel took it upon itself to resolve the question and agreed with the challengers that there was not sufficient evidence of a risk to humans.(4) Although the Appellate Body modified the panel's reasoning somewhat, it nevertheless affirmed its conclusion that the European ban violated the SPS Agreement.(5) The most serious obstacle to the right of governments to establish their own level of protection against risk is the WTO panels' treatment of science. The history of science clearly demonstrates that the majority does not rule when it comes to the search for truth. Indeed, many truths we consider most obvious--the Earth's shape and its place in the solar system, for example--were once considered outrageous by the majority scientific community. Because scientific opinions may nevertheless be correct, the right to establish an appropriate level of protection against risk implies the right to rely on such opinions in doing so. The higher one's desired level of protection, the less one will be willing to take the chance that scientific opinions suggesting a risk are flawed and the more weight one will give to those opinions. To place limitations on the use of minority science to justify protective measures is to limit a government's ability to implement a high level of protection. Although the Appellate Body gave lip-service to this concern in the EC--Hormones decision, it nevertheless imposed such limitations, suggesting that basing SPS measures on divergent opinion coming from qualified and respected sources is more legitimate where the risk involved is in character and is perceived to constitute a clear and imminent threat to public health and safety.(6) The relevance of minority science, however, and the chance that it may be correct, have nothing to do with whether the risk is or is only a risk of injury or curable disease. Moreover, the panel and Appellate Body's rejection of the minority scientific opinion presented in the hormone case demonstrates that a life-threatening risk is not enough. The Appellate Body recognized that the evidence demonstrated a general risk of cancer(7)--clearly a life threatening risk--but rejected the minority opinion that the evidence justified measures to protect against the specific risk from eating hormone-treated meat. …

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