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Abstract

  1. Top of page
  2. Abstract
  3. INTRODUCTION
  4. WORLD TRADE ORGANIZATION
  5. CONVENTION ON BIOLOGICAL DIVERSITY
  6. CODEX ALIMENTARIUS
  7. OUTLOOK

Genetically modified (‘bio-engineered’ or ‘transgenic’) food has been at the centre of a transatlantic legal controversy for well over a decade – with the EU insisting on mandatory information disclosure to consumers and the USA resisting it. This article reviews recent developments in three global institutions dealing with the issue: the Dispute Settlement Body of the World Trade Organization (the 2006 Biotech Products Panel Report); the Biosafety Protocol of the Convention on Biological Diversity (the 2006 Curitiba Rules); and the Codex Alimentarius (the 2006 session of the Committee on Food Labelling). The focus of attention appears to be shifting, from initial concerns over risk communication towards a debate over democratic governance: ‘right-to-know’ versus ‘need-to-know’.


INTRODUCTION

  1. Top of page
  2. Abstract
  3. INTRODUCTION
  4. WORLD TRADE ORGANIZATION
  5. CONVENTION ON BIOLOGICAL DIVERSITY
  6. CODEX ALIMENTARIUS
  7. OUTLOOK

‘Consumers have a right to choose whether to eat GM foods or not.’ Gordon Conway, President, Rockefeller Foundation1

Environmental product labels are part of a wider family of informational or ‘contextual’ instruments developed under innovative national and international law over the past 40 years.2 This rather recent wave of ‘regulation through revelation’3 has been hailed by some as the third generation of environmental law,4 after traditional command-and-control and the (second) wave of market-based instruments. Sociologists tell us that the new popular demand for better information – through product labelling in particular – also reflects wide-spread disenchantment with official risk assessments, and a net loss of trust by post-modern ‘world risk society’ in so-called authoritative scientific advice on risk control.5

Legal obligations to disclose environment-related risk information exist at four distinct levels:

  • • 
    disclosure to governments, by environmental impact statements for the planning or licensing of specified projects,6 environmentally hazardous activities,7 risk-prone industries,8 or ‘dangerous goods’;9
  • • 
    disclosure to citizens, under ‘right-to-know’ schemes for specified workplace environments or for the benefit of communities adjoining industrial facilities;10
  • • 
    disclosure to investors, as part of corporate financial accounting schemes;11 and
  • • 
    disclosure to consumers, through a variety of labelling schemes ranging from hazard warnings12 to product-related or process-related certifications of contents or origin.

This article will address current developments in the latter type of informational regulation, summarizing the state of play in a rapidly evolving field of multilevel environmental governance.

Food product labelling has long been a concern of consumer information, and a source of legal controversy – mainly because of its public health implications, on the one hand, and significant trade implications, on the other. Yet, when it comes to regulating human food, health and trade are not the only rationale. Genetically modified (GM) food, in particular, raises broader socio-cultural and, indeed, ethical issues at the national and international level.13 Law making in this field has to take into account multiple – and sometimes conflicting – policy objectives, including policies to (i) protect the natural environment and biological diversity against unintended irreversible side-effects of bio-engineering; (ii) safeguard diverse cultural and religious traditions of food production, preparation and consumption; (iii) optimize the potential of biotechnology for improving food supply and nutritional quality, especially in developing countries; (iv) ensure a socially equitable distribution of biotech benefits and risks between resource-rich agribusiness and resource-poor farmers and fishers, in highly competitive global, regional and local food markets; and (v) hold governmental authorities and the industry/business sector accountable for food safety and adequate risk communication to users and consumers.

National regulatory systems for the labelling of GM food differ widely. While the EU requires labelling and ‘traceability’ for food products containing more than 0.9 % GM ingredients,14 various other mandatory labelling schemes in at least 20 countries have different – mostly less stringent – thresholds and/or product-tracing standards; e.g. Australia,15 Brazil, China,16 India, Indonesia, Japan,17 South Korea, Malaysia, New Zealand,18 Norway,19 the Philippines, Russia, Saudi Arabia, Switzerland20 and Thailand.21 By contrast, in the USA, Canada and Argentina (which together produce more than 80% of the world's GM crops),22 labelling is essentially voluntary – with labels saying ‘not genetically modified’ permitted within the North American Free Trade Area (NAFTA) for food products containing up to 5% GM ingredients.23 Most Latin American and African countries have no labelling requirements for transgenics at all.24

At the international level, these divergences have animated a lively ‘food fight’,25 played out simultaneously over the past decade in at least three major arenas:26

  • • 
    the Dispute Settlement Body of the World Trade Organization (WTO);
  • • 
    the Biosafety Protocol of the Convention on Biological Diversity (CBD); and
  • • 
    the Committee on Food Labelling of the Food and Agriculture Organization (FAO)/World Health Organization (WHO) Codex Alimentarius.

In each of those three theatres of global economic–environmental diplomacy, the Atlantic divide has turned out to be the major fault-line on the GM issue (‘a single global cleavage’).27

WORLD TRADE ORGANIZATION

  1. Top of page
  2. Abstract
  3. INTRODUCTION
  4. WORLD TRADE ORGANIZATION
  5. CONVENTION ON BIOLOGICAL DIVERSITY
  6. CODEX ALIMENTARIUS
  7. OUTLOOK

On 8 August 2003, the USA, Canada and Argentina requested the establishment of a WTO Dispute Settlement Panel to examine EU measures affecting the approval and marketing of biotech products.28 The Biotech Products Panel so established on 4 March 2004 – composed of Christian Häberli (Switzerland) as chairman, Mohan Kumar (India) and Akio Shimizu (Japan) – submitted its final report to the parties on 10 May 2006.29 While the Panel, as the walrus said,30 speaks of many things other than GM cabbages, it did find that the EU's Regulation (EC) 1830/2003 on labelling and traceability31 was ‘not directly relevant to this dispute’,32 – ostensibly on the grounds that the Regulation had been enacted (on 22 September 2003, with effect from 18 April 2004) after the dispute arose. That is small consolation, though: given that, in November 2003, US agri-business lobbyists had urged the US Trade Representative to challenge the EU's GM labelling and tracing rules, too;33 it may be just a matter of time now for the second shoe to drop.

CONVENTION ON BIOLOGICAL DIVERSITY

  1. Top of page
  2. Abstract
  3. INTRODUCTION
  4. WORLD TRADE ORGANIZATION
  5. CONVENTION ON BIOLOGICAL DIVERSITY
  6. CODEX ALIMENTARIUS
  7. OUTLOOK

The Third Meeting of the Parties to the Cartagena Protocol on Biosafety,34 held in Curitiba, Brazil in March 2006,35 dealt with the identification and documentation of cross-border shipments containing GM living organisms (LMOs) for food, feed and processing, as envisaged under Article 18(2)(a) of the Protocol. After lengthy negotiations, the conference decided to request its 131 member countries to require a label saying ‘contains LMOs’ – to be accompanied by further information as specified in an earlier decision36 – for all exported products (such as soybeans or maize) that have clearly been identified and separated as transgenics. On the other hand, it allowed a 6-year transition period for countries wishing to retain a less specific label saying ‘may contain LMOs’, for products in which the presence of transgenics has not been documented and identified from the origin.37

While the ‘Curitiba Rules’ have been hailed as a diplomatic breakthrough, their practical scope is, of course, limited by the CBD Biosafety Protocol's membership itself. At the insistence of Mexico in particular, trade with non-parties (e.g. under NAFTA) will be exempt from the detailed information requirements for LMOs. Not surprisingly, the WTO Biotech Products Panel also side-stepped the Cartagena Protocol as ‘not applicable’, (a) because it had entered into force after the dispute arose38 and (b) because all the complainants in that dispute are non-parties to the Protocol.39 It remains to be seen, however, whether that will suffice to make future non-party litigants ‘bullet-proof’ against relevant environment-related considerations in the WTO context.40

CODEX ALIMENTARIUS

  1. Top of page
  2. Abstract
  3. INTRODUCTION
  4. WORLD TRADE ORGANIZATION
  5. CONVENTION ON BIOLOGICAL DIVERSITY
  6. CODEX ALIMENTARIUS
  7. OUTLOOK

Labelling of foods obtained through genetic modification/biotechnology is also on the agenda of the FAO/WHO Food Standards Programme and its Codex Alimentarius Commission (CAC). The Codex Alimentarius – established in 1963, with a current membership of 172 States and the EU – had long operated ‘beneath the radar’ of international lawyers, even though its legal framework is well documented.41 Until 1995, it was widely viewed as an obscure gentlemen's club,42 whose standards – elaborated by expert committees43 – were considered ‘soft’ (i.e. non-binding) until they were formally ‘accepted’ by governments.44

That reputation changed after the Uruguay Round, however, with the entry into force – in January 1995 – of the WTO Agreements on the Application of Sanitary and Phytosanitary Measures (SPS) and on Technical Barriers on Trade (TBT).45 Together with its two sister institutions for plant and animal health (the International Plant Protection Convention and the International Office of Epizootics), the CAC was now designated as a benchmark authority for global standard setting in the WTO context.46 Consequently, in the event of disputes, conformity of national regulations with global Codex standards creates a presumption of consistency with the SPS Agreement,47 – which in turn creates a presumption of accordance with the General Agreement on Tariffs and Trade (GATT) 1994 provisions relating to the use of SPS measures, in particular Article XX(b).48 Even though the WTO Dispute Settlement Body stopped short of treating Codex standards as a priori legally binding,49 the standard-setting process of the Codex Alimentarius has inevitably ended up being politicized – sometimes to the point of stalemate.50

Because the Codex operates de facto on a consensus basis,51 it is comparatively easy for powerful governments – or for powerful industries through captive governments – to sabotage the adoption of standards that are not to their liking. After protracted bargaining in an ad hoc intergovernmental task force, risk analysis standards for biotechnology-derived food – including ‘product tracing’ – were finally adopted in July 2003;52 and, in September 2005, the Codex task force (subject to approval by the CAC at its twenty-ninth session in July 2006) also agreed to start drafting guidelines on the conduct of food safety assessments for ‘second-generation’ bio-engineered food (e.g. milk from GM cows and ‘golden rice’ modified for pro-vitamin A enhancement).53 However, the Codex Committee on Food Labelling (CCFL) has tried and failed for almost 9 years now to reconcile conflicting views over mandatory versus voluntary, and process-based versus product-based labelling of GM/biotech foods.54 All that the most recent thirty-fourth CCFL session, held in Ottawa in May 2006, accomplished on this issue was to keep the item on the Codex agenda – over the opposition of the US-led producers’ coalition – and to set up a new working group chaired by Norway (and co-chaired by Ghana and Argentina, so as to ensure robust gridlock), with a timid mandate to gather information on current GM food labelling standards and practices in different member countries, as well as on ‘strategies used in communicating information to the public’, in time for the next CCFL session in 2007.55

OUTLOOK

  1. Top of page
  2. Abstract
  3. INTRODUCTION
  4. WORLD TRADE ORGANIZATION
  5. CONVENTION ON BIOLOGICAL DIVERSITY
  6. CODEX ALIMENTARIUS
  7. OUTLOOK

One central question also left unanswered by the WTO Biotech Products Panel is the overall scope of the Codex Alimentarius mandate. While one of the Codex priorities is food safety (which falls within the SPS category of measures, viewed by GM food producers/exporters as the only legitimate justification for labelling), other Codex guidelines and standards aim to provide consumers with information irrespective of health concerns; e.g. the identification and labelling of halal foods permitted under Islamic religious law, or information on the country of origin or processing of pre-packaged foods.56 Hence, in CCFL sessions since 1997,57 the EU and other food importers such as Norway consistently argued that the declared primary purpose of their GM food labelling regulations is not a health risk warning, but information to enable consumers to exercise their freedom of choice.58 Such ‘other legitimate factors’ would therefore fall within the ambit of the TBT rather than the SPS Agreement.59 Along the same lines, the 2003 Swiss Gene Technology Act requires GM labelling ‘in order to ensure freedom of choice for the consumer … and to prevent product fraud’.60 With that emphasis on informed choice and consumer autonomy,61 the issue is no longer one of divergent scientific risk assessments,62 but a more fundamental contest over public policy, legitimacy and democratic governance.63

Ironically perhaps, North America and Europe appear to have traded places in this contest.64 Only one generation ago, the USA ranked as the undisputed champion of citizen access to environment-related information – from the 1966 US Freedom of Information Act (hailed by European Greens as ‘the Magna Carta of ecological democracy’),65 to environmental impact statements under the 1970 US National Environmental Policy Act (which spread like wildfire to other legal systems),66 and the post-Bhopal toxics release inventory under the 1986 US Emergency Planning and Community Right-to-Know Act (acknowledged role-model for Pollutant Release and Transfer Registers (PRTR) in Europe and elsewhere).67 The backlash started in the 1990s, with the USA and Canada refusing to sign the 1998 Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters,68 or to participate in the negotiation of its PRTR Protocol,69 and the US State Department systematically blocking implementation of Rio Principle 10 as regards public disclosure of risk information.70 At the very time when Europeans have finally adopted access to environmental information (be it government-held or industry-held) as a civil/civic right – expressly extended to public participation in decisions on GM issues, by a 2005 amendment to the Aarhus Convention71 – it seems as though Americans are now sounding the retreat from a right to know72 towards a kind of ‘soft paternalism’,73 with a benevolent avuncular State determining what citizens and consumers do or do not need to know.74

Footnotes
  • 1

    G. Conway, Statement to the Monsanto Board of Directors (Washington DC, 24 June 1999), published in 4 Conservation Ecology (2000), 2; see also the interview with G. Conway in D. Stipp, ‘The Voice of Reason in the Global Food Fight’, 141 Fortune Magazine (21 February 2000), at 4.

  • 2

    See J.M. Henke, Information as an Environmental Policy Instrument: Environmental Product Information Schemes (Oikos Foundation for Economy and Environment, University of St Gallen, Switzerland, 2004); and P.H. Sand, ‘Information Disclosure and the Atlantic Divide’, in J.B. Wiener et al. (eds), The Reality of Precaution: Comparing Risk Regulation in the US and Europe (Cambridge University Press, forthcoming 2006).

  • 3

    A. Florini, ‘The End of Secrecy’, 111 Foreign Policy (1998), 50, at 59; J.T. Hamilton, Regulation Through Revelation: The Origin, Politics, and Impacts of the Toxics Release Inventory Program (Cambridge University Press, 2005); see also W.A. Magat and W.K. Viscusi, Informational Approaches to Regulation (MIT Press, 1992); P.R. Kleindorfer and E.W. Orts, ‘Informational Regulation of Environmental Risks’, 18 Risk Analysis (1998), 155; D.W. Case, ‘The Law and Economics of Environmental Information as Regulation’, 31 Environmental Law Reporter (2001), 10773; W.F. Pedersen Jr, ‘Regulation and Information Disclosure: Parallel Universes and Beyond’, 25 Harvard Environmental Law Review (2001), 151; M. Graham, Democracy by Disclosure: The Rise of Technopopulism (Brookings Institution, 2002).

  • 4

    T.H. Tietenberg, ‘Disclosure Strategies for Pollution Control’, 11 Environmental and Resource Economics (1998), 587 (‘third wave in pollution control’); see also T.H. Tietenberg and D. Wheeler, ‘Empowering the Community: Information Strategies for Pollution Control’, in H. Folmer et al. (eds), Frontiers of Environmental Economics (Edward Elgar, 2001), 85; C.H. Schroeder, ‘Third Way Environmentalism’, 48 Kansas Law Review (2000), 1, at 19 (‘information provision devices’); R.B. Stewart, ‘A New Generation of Environmental Regulation’, 29 Capital University Law Review (2001), 21.

  • 5

    U. Beck, ‘World Risk Society as Cosmopolitan Society? Ecological Questions in a Framework of Manufactured Uncertainties’, 13:4 Theory, Culture and Society (1996), 1; U. Beck, ‘Politics of Risk Society’, in J. Franklin (ed.), The Politics of Risk Society (Polity Press, 1998), 9; see also R.E. Löfstedt, Risk Management in Post-Trust Society (Palgrave Macmillan, 2005); M. Siegrist et al., ‘Perception of Risk: The Influence of General Trust, and General Confidence’, 8:2 Journal of Risk Research (2005), 145.

  • 6

    Environmental impact assessment (EIA) was introduced by the 1970 US National Environmental Policy Act (NEPA), 83 Stat. 852 (1970), and by EU Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, [1985] OJ L175/40.

  • 7

    Concept introduced by the 1969 Swedish Environment Protection Act (Miljöskyddslag, Svensk Författnings-Samling 1969:387); see S. Westerlund, Miljöfarlig Verksamhet (Norstedt, 1975); S. Westerlund, ‘Legal Antipollution Standards in Sweden’, 25 Scandinavian Studies in Law (1981), 223, at 231.

  • 8

    Licensing of hazardous industries dates back to nineteenth century French legislation (établissements classés), Prussia's 1845 Gewerbe-Ordnung, and Britain's 1900 Alkali and Other Works Regulation; see P.H. Sand, ‘The Precautionary Principle: A European Perspective’, 6 Human and Ecological Risk Assessment (2000), 445, at 448.

  • 9

    For example, for border-crossing road transports of dangerous goods, under the European Agreement Concerning the International Carriage of Dangerous Goods by Road (ADR) (Geneva, 30 September 1957); and for exports of banned or restricted hazardous chemicals, under the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (Basel, 22 March 1989), the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (PIC) (Rotterdam, 10 September 1998) and the Stockholm Convention on Persistent Organic Pollutants (POPs) (Stockholm, 22 May 2001).

  • 10

    On labelling required under the ‘hazard communication standards’ of the US Occupational Safety and Health Administration (OSHA), see W.K. Viscusi, Risk by Choice: Regulating Health and Safety in the Workplace (Harvard University Press, 1983), 158. On the US ‘toxics release inventory’ (TRI) established in 1986 – in the wake of the Bhopal disaster – and the related Californian ‘Proposition 65’, see S.G. Hadden, A Citizen's Right-to-Know: Risk Communication and Public Policy (Westview, 1989); and C. Rechtschaffen, ‘The Warning Game: Evaluating Warnings Under California's Proposition 65’, 23 Ecology Law Quarterly (1996), 303. Within the framework of the United Nations Economic Commission for Europe (ECE) Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus, 25 June 1998), see the Protocol on Pollutant Release and Transfer Registers (PRTRs) (Kiev, 21 May 2003), and its implementation by EU Regulation (EC) 166/2006 of 18 January 2006 concerning the establishment of a European Pollutant Release and Transfer Register, [2006] OJ L33/1.

  • 11

    An example is ‘form 10-K filings’ required by the US Securities and Exchange Commission (SEC); see R.H. Feller, ‘Environmental Disclosure and the Securities Laws’, 22 Boston College Environmental Affairs Law Review (1995), 225; J.W. Bagby et al., ‘How Green Was My Balance Sheet? Corporate Liability and Environmental Disclosure’, 14 Virginia Environmental Law Journal (1995), 224; see also EU Directive 2003/51/EC of 18 June 2003 on the annual and consolidated accounts of certain types of companies, banks and other financial institutions and insurance undertakings, [2003] OJ L178/16; T. Emtairah, Corporate Environmental Reporting: Review of Policy Action in Europe (International Institute for Industrial Environmental Economics, 2002).

  • 12

    An example is cigarette labelling; see F. Godfrey (ed.), Tobacco or Health in the European Union: Past, Present and Future (European Communities ASPECT Consortium, 2004), at 120. See also C. Hilson, ‘Information Disclosure and the Regulation of Traded Product Risks’, 17 Journal of Environmental Law (2005), 305, at 319.

  • 13

    See the report of the FAO Panel of Eminent Experts on Ethics in Food and Agriculture, Genetically Modified Organisms, Consumers, Food Safety and the Environment, Ethics Series (Food and Agriculture Organization of the United Nations, 2001–2002); see also 20 Questions on Genetically Modified (GM) Foods (World Health Organization, 2002); T. Bernauer, Genes, Trade, and Regulation: The Seeds of Conflict in Food Biotechnology (Princeton University Press, 2003), at 33; M.D. Rogers, ‘Genetically Modified Plants and the Precautionary Principle’, 7:7/8 Journal of Risk Research (2004), 675; F. Francioni and T. Scovazzi (eds), Biotechnology and International Law (Hart Publishing, 2006).

  • 14

    Regulation (EC) 1830/2003 of 22 September 2003 concerning the traceability and labelling of genetically modified organisms and the traceability of food and feed products produced from genetically modified organisms, and amending Directive 2001/18/EC, [2003] OJ L268/24. See C. MacMaoláin, ‘The New Genetically Modified Food Labelling Requirements: Finally a Lasting Solution?’, 28 European Law Review (2003), 865; and B. Schwartz, ‘WTO and GMOs: Analyzing the European Community's Recent Regulations Covering the Labeling of Genetically Modified Organisms’, 25:3 Michigan Journal of International Law (2004), 771, at 781. It is worth noting that Regulation 1830/2003 was one of the rare instances where the EU Commission chose to overrule the recommendations of its own Group of Advisers on the Ethical Implications of Biotechnology (GAIEB), to the effect that labelling was appropriate only in those cases where modern biotechnology causes a substantial change in the composition, nutritional value or use of the food (GAEIB, Opinion No 5 (5 May 1995), para. 2.4).

  • 15

    See D. Morgan and G. Goh, ‘Genetically Modified Food Labelling and the WTO Agreements’, 13:3 RECIEL (2004), 306, at 307.

  • 16

    S. Zarrilli, International Trade in GMOs and GM Products: National and Multilateral Legal Frameworks, UNCTAD Policy Issues in International Trade and Commodities Study Series 29 (UNCTAD/ITCD/TAB/30, 2005), at 6 and 19–20.

  • 17

    G.P. Gruère, An Analysis of Trade-Related International Regulations of Genetically Modified Food and their Effects on Developing Countries, EPT Discussion Paper 147 (International Food Policy Research Institute, February 2006), at 36–38.

  • 18

    Food Standards Code 1.5.2 (effective 7 December 2001). See Report on the Review of Labelling of Genetically Modified Food (Food Standards Australia New Zealand, 2004). On 30 March 2006, a new Consumers’ Right to Know (Food Information) Bill was introduced in Parliament by Sue Kedgley MP (New Zealand Green Party).

  • 19

    K.M. Grimsrud et al., ‘Policies and Attitudes Toward Genetically Modified Food in Norway’, 3:3 Euro-Choices (2005), 38.

  • 20

    F.X. Perrez, ‘GMOs and International Law: The Swiss Example’, 14:2 RECIEL (2005), 161, at 167.

  • 21

    For a comparative overview, see Genetically Engineered Crops and Foods: Worldwide Regulation and Prohibition (Center for Food Safety, updated February 2005); see also C.A. Carter and G.P. Gruère, ‘International Approval and Labelling Regulations of Genetically Modified Food in Major Trading Countries’, in J.M. Alston et al. (eds), Economics of Regulation of Agricultural Biotechnologies (Springer/Kluwer Academic, 2006).

  • 22

    See the 1996–2005 figures in C. James, Global Status of Commercialized Biotech/GM Crops: 2005, ISAAA Brief 34 (International Service for the Acquisition of Agri-Biotech Applications, Cornell University, 2005).

  • 23

    See Voluntary Labelling Indicating Whether Foods Have or Have Not Been Developed Using Bioengineering (US Food and Drug Administration, January 2001); and Regulation of Biotechnology in Canada (Canadian Food Inspection Agency, 2003). Exceptionally, however, US federal law requires mandatory labelling for GM foods that differ substantially from their conventional counterparts and cause health or safety concerns. The concept of ‘substantial equivalence’ between GM and non-GM products in trade remains controversial also in the international debate; see D.M. Strauss, ‘Genetically Modified Organisms in Food: A Model of Labeling and Monitoring with Positive Implications for International Trade’, 40:1 International Lawyer (2006), 95.

  • 24

    See H. Baumüller, Domestic Import Regulations for Genetically Modified Organisms and their Compatibility with WTO Rules: Some Key Issues (International Institute for Sustainable Development/International Centre for Trade and Sustainable Development Trade Knowledge Network, August 2003). Exceptionally, South Africa requires mandatory labelling for GM foods that are significantly different from conventional foods and contain specified allergens; see S. Zarrilli, n. 16 above, at 22.

  • 25

    R.L. Paarlberg, ‘The Global Food Fight’, 79:3 Foreign Affairs (2000), 24; M.P. Steiner, ‘Food Fight: The Changing Landscape of Genetically Modified Foods and the Law’, 9:2 RECIEL (2000), 152.

  • 26

    See D. Brack et al., The Next Trade War? GM Products, the Cartagena Protocol and the WTO, Briefing Paper 8 (Royal Institute of International Affairs, 2003); P. Pfister, ‘Clashing Arenas or Network Governance: The Challenge of Interplay in GM Food Regulation’, in F. Biermann and B. Siebenhüner (eds), Proceedings of the 2005 Berlin Conference on the Human Dimensions of Global Environmental Change: International Organizations and Global Environmental Governance (Potsdam Institute for Climate Impact Research, forthcoming 2006). Other potential arenas could be the International Organization for Standardization, which develops uniform technical standards for the detection of GM organisms and derived products in foodstuffs; and the World Customs Organization, whose Harmonized Commodity Description and Coding System currently does not distinguish between GM and non-GM food.

  • 27

    E. Millstone and P. Van Zwanenberg, ‘Food and Agricultural Biotechnology: How Much Autonomy Can Developing Countries Exercise?’, 21:5/6 Development Policy Review (2003), 655, at 656. See also G.E. Isaac, Agricultural Biotechnology and Transatlantic Trade: Regulatory Barriers to GM Crops (CABI Publishing, 2002); R. Falkner, ‘Trading Food: The International Politics of Genetically Modified Organisms’, in B. Hocking and S. McGuire (eds), Trade Politics (Routledge, 2004), 249; J. Murphy and L. Levidow, Governing the Transatlantic Conflict Over Agricultural Biotechnology: Contending Coalitions, Trade Liberalization and Standard Setting (Routledge, forthcoming 2006); K.L. Kollman and A. Prakash, ‘Biopolitics in the US: An Assessment’, in R. Falkner (ed.), The International Politics of Genetically Modified Food: Diplomacy, Trade and Law (Palgrave Macmillan, forthcoming 2006).

  • 28

    The submission by the three complainants followed earlier requests for consultations in May 2003, joined in June 2003 by related requests from Australia, Brazil, Colombia, India, Mexico, New Zealand and Peru; see L. Boisson de Chazournes and M.M. Mbengue, ‘GMOs and Trade: Issues at Stake in the EC Biotech Dispute’, 13:3 RECIEL (2004), 289; J. McDonald, ‘The WTO Biotech Products Dispute and Precaution and Science in International GMO Trade’, 21:6 Environmental and Planning Law Journal (2004), 413; D. Winickoff et al., ‘Adjudicating the GM Food Wars: Science, Risk, and Democracy in World Trade Law’, 30:1 Yale Journal of International Law (2005), 81; J. Peel et al., ‘GMO Trade Wars: The Submissions in the EC GMO Dispute in the WTO’, 6:1 Melbourne Journal of International Law (2005), 141.

  • 29

    WTO DS 10 May 2006, European Communities – Measures Affecting the Approval and Marketing of Biotech Products, WTO/DS291, WT/DS292 and WT/DS293; see D. Wüger, ‘Biotech Products WTO Panel Report’, 10:5 ASIL Insights (8 March 2006). Most of the findings of the interim report were upheld by the final report to the parties (which is still confidential).

  • 30

    L. Carroll, Through the Looking Glass (Macmillan, 1871), chapter 4 (‘The time has come,’ the Walrus said, ‘to talk of many things: of shoes – and ships – and sealing-wax – of cabbages – and kings . . . ’).

  • 31

    See n. 14 above.

  • 32

    See European Communities – Measures Affecting the Approval and Marketing of Biotech Products, n. 29 above, at para. 7.144.

  • 33

    Letter reproduced in ‘Agriculture Groups Seek New WTO Action Against EU on GMO Rules’, Inside US Trade (28 November 2003), at 6–8; for earlier efforts see J. Fredland, ‘Unlabel their Frankenstein Foods! Evaluating a US Challenge to the European Commission's Labelling Requirements for Food Products Containing Genetically-Modified Organisms’, 33:1 Vanderbilt Journal of Transnational Law (2000), 183; C. Hoehn, ‘The Transatlantic Trade Dispute Concerning Genetically Modified Organisms: WT-Consistency of the EC Labelling Scheme’, 15:2 Revue Québecoise de Droit International (2002), 25.

  • 34

    Biosafety Protocol (Montreal, 29 January 2000) to the Convention on Biological Diversity (Rio de Janeiro, 5 June 1992); see C. Bail et al. (eds), The Cartagena Protocol on Biosafety: Reconciling Trade in Biotechnology with Environment and Development? (Royal Institute of International Affairs, 2002).

  • 35

    Report of the Third Meeting of the Conference of the Parties to the Convention on Biological Diversity Serving as the Meeting of the Parties to the Cartagena Protocol on Biosafety, Curitiba, Brazil, 13–17 March 2006 (Doc. UNEP/CBD/BS/COP-MOP/3/15, 6 May 2006).

  • 36

    Decision BS-I/6, Handling, transport, packaging and identification of living modified organisms (Article 18) (Doc. UNEP/CBD/BS/COP-MOP/1/15, 14 April 2004), Annex.

  • 37

    Decision BS-III/10, Handling, transport, packaging and identification of living modified organisms: para. 2(a) of Article 18, found in Report of the Third Meeting, n. 35 above, Annex, para. 4(a)–(b). An interim evaluation of this labelling system is to be undertaken by the Fifth meeting of the Parties in 2010, in preparation for the phasing out at the Sixth Meeting in 2012 (paras 7 and 11). For a summary of the negotiations on Article 18:2(a), see Report of the Third Meeting, n. 35 above, paras 157–172; see also S. Aguilar et al., ‘Third Meeting of the Conference of the Parties to the Convention on Biological Diversity serving as the Meeting of the Parties to the Cartagena Protocol on Biosafety – Summary and Analysis’, 9:351 Earth Negotiations Bulletin (20 March 2006), 1; E. Tsioumani, ‘Decision on Documentation of GM Commodities’, 36:2 Environmental Policy and Law (2006), 78.

  • 38

    The Protocol entered into force (and hence the EU became a party) on 11 September 2003.

  • 39

    See European Communities – Measures Affecting the Approval and Marketing of Biotech Products, n. 29 above, at paras 7.74–7.75: Argentina and Canada (both of which are parties to the CBD) signed the Protocol but have not ratified so far; the USA continues to shun both agreements. On the complex inter-treaty relationship with GATT, see F.X. Perrez, ‘The Cartagena Protocol on Biosafety and the Relationship between the Multilateral Trading System and Multilateral Environmental Agreements’, 10:4 Swiss Review of International and European Law (2000), 518; P.W.B. Phillips and W.A. Kerr, ‘Alternative Paradigms: The WTO versus the Biosafety Protocol for Trade in Genetically Modified Organisms’, 34:4 Journal of World Trade (2000), 63; A.H. Qureshi, ‘The Cartagena Protocol on Biosafety and the WTO: Co-Existence or Incoherence?’, 49:4 International and Comparative Law Quarterly (2000), 835; T. Anderson, ‘The Cartagena Protocol on Biosafety to the Convention on Biological Diversity: Trade Liberalization, the WTO, and the Environment’, 7:1 Asia Pacific Journal of Environmental Law (2002), 1; S. Safrin, ‘Treaties in Collision? The Biosafety Protocol and the World Trade Organization’, 96:3 AJIL (2002), 606; O. Rivera Torres, ‘The Biosafety Protocol and the WTO’, 26:2 Boston College International and Comparative Law Review (2003), 263; G.R. Winham, ‘International Regime Conflict in Trade and Environment: The Biosafety Protocol and the WTO’, 2:2 World Trade Review (2003), 131; P.J. Vallely, ‘Tension Between the Cartagena Protocol and the WTO: The Significance of Recent WTO Developments in an Ongoing Debate’, 5:1 Chicago Journal of International Law (2004), 369; and G.E. Isaac and W.A. Kerr, ‘The Biosafety Protocol and the WTO: Concert or Conflict?’, in R. Falkner, n. 27 above.

  • 40

    S. Suppan, The WTO's EC-Biotech Products Ruling and the Cartagena Protocol (Institute for Agriculture and Trade Policy, March 2006), at 3. For different views, see T. Cottier, ‘Implications for Trade Law and Policy: Towards Convergence and Integration’, in C. Bail et al., n. 34 above, at 473; L. Boisson de Chazournes and M.M. Mbengue, n. 28 above, at 305, referring to the 1996 Report of the WTO Committee on Trade and Environment (WT/CTE/1, 12 November 1996), at paras 36–38; and R.A. Neff, ‘The Cartagena Protocol and the WTO: Will the EU Biotech Products Case Leave Room for the Protocol?’, 16:3 Fordham Environmental Law Review (2005), 261.

  • 41

    See J.P. Dobbert, ‘Le Codex Alimentarius: vers une nouvelle méthode de réglementation’, 15 Annuaire Français de Droit International (1969), 677; J.P. Dobbert, ‘Decisions of International Organizations – Effectiveness in Member States: Some Aspects of the Law and Practice of FAO’, in S.M. Schwebel (ed.), The Effectiveness of International Decisions (American Society of International Law, 1971), 206, at 242–256; P. Contini and P.H. Sand, ‘Methods to Expedite Environment Protection: International Eco-Standards’, 66:1 AJIL (1972), 37, at 44–49; S. Shubber, ‘The Codex Alimentarius Commission Under International Law’, 21:4 International and Comparative Law Quarterly (1972), 631; P.D.M. Leive, International Regulatory Regimes: Case Studies in Health, Meteorology and Food, Vol. 2 (Lexington Books, 1976), at 373–492; D.G. Victor, Effective Multilateral Regulation of Industrial Activity: Institutions for Policing and Adjusting Binding and Nonbinding Legal Commitments, Ph.D. Thesis (MIT Department of Political Science, 1998); T. Hüller and M.L. Maier, ‘Fixing the Codex? Global Food-Safety Governance Under Review’, in C. Joerges and E.U. Petersmann (eds), Constitutionalism, Multilevel Trade Governance and Social Regulation (Hart Publishing, 2006), 325.

  • 42

    F. Veggeland and S.O. Borgen, Changing the Codex: The Role of International Institutions, Working Paper 2002-16 (Norwegian Agricultural Economic Institute, 2002), at 9–10.

  • 43

    There are nine general subject ‘horizontal’ committees (such as the Committee on Food Labelling), and 16 product-specific ‘vertical’ committees (for commodities such as processed fruits); see the Report on Evaluation of the Codex Alimentarius and Other FAO and WHO Food Standards Work (FAO/WHO, November 2002).

  • 44

    While ‘accepted’ standards make national implementation mandatory, until 1993 only about 12% of all Codex standards were formally accepted by Member States, and most of those with ‘specific deviations’; see D.G. Victor, n. 41 above.

  • 45

    SPS Agreement (Marrakesh, 15 April 1994); and see TBT Agreement (Marrakesh, 15 April 1994).

  • 46

    See SPS Agreement, ibid., Article 3.2 and Annex A, para. 3 (‘for food safety, the relevant standards, guidelines and recommendations are those established by the Codex Alimentarius Commission . . .’); see T.B. Stewart and D.S. Johanson, ‘The SPS Agreement of the World Trade Organization and International Organizations: The Roles of the Codex Alimentarius Commission, the International Plant Protection Convention, and the International Office of Epizootics’, 26:1 Syracuse Journal of International Law and Commerce (1999), 26, reprinted in S. Henson and J.S. Wilson (eds), The WTO and Technical Barriers to Trade (Edward Elgar, 2005), 401; A. Cosbey, A Forced Evolution? The Codex Alimentarius Commission, Scientific Uncertainty and the Precautionary Principle (International Institute for Sustainable Development, 2000), at 8; H. Micklitz, ‘International Regulations on Health, Safety, and the Environment’, 23:1 Journal of Consumer Policy (2000), 3; U.P. Thomas, ‘The Codex Alimentarius and Environment-Related Food Safety: The Functioning of the Global Standards’, 1:2 Economic Policy and Law (2004); and A. Herwig, ‘Transnational Governance Regimes for Foods Derived from Biotechnology and their Legitimacy’, in C. Joerges et al. (eds), Transnational Governance and Constitutionalism (Hart Publishing, 2004).

  • 47

    R. Mackenzie, ‘The International Regulation of Modern Biotechnology’, 13 YBIEL (2002), 97, at 110; S. Poli, ‘The European Community and the Adoption of International Food Standards within the Codex Alimentarius Commission’, 10:5 European Law Journal (2004), 613, at 626; A.A. Ostrovsky, ‘The New Codex Alimentarius Commission Standards for Food Created with Modern Biotechnology: Implications for the EC GMO Framework's Compliance with the SPS Agreement’, 25:3 Michigan Journal of International Law (2004), 813, at 815. On the parallel status of Codex Alimentarius standards under the TBT Agreement (in the WTO Sardines Panel Report), see R. Howse, ‘A New Device for Creating International Legal Normativity: The WTO Technical Barriers to Trade Agreement and “International Standards”’, in C. Joerges and E.U. Petersmann, n. 41 above, 445.

  • 48

    See General Agreement on Tariffs and Trade 1994 (Marrakesh, 15 April 1994), Article XX(b). See also D. Morgan and G. Goh, n. 15 above, at 309. That presumption may be rebuttable, though; see R. Howse and P.C. Mavroidis, ‘Europe's Evolving Regulatory Strategy for GMOs: The Issue of Consistency with WTO Law: Of Kine and Brine’, 24:1/2 Fordham International Law Journal (2000), 317, at 322–327; G. Marceau and J.P. Trachtman, ‘The Technical Barriers to Trade Agreement, the Sanitary and Phytosanitary Measures Agreement and the General Agreement on Tariffs and Trade: A Map of the World Trade Organization Law of Domestic Regulation of Goods’, 36:5 Journal of World Trade (2002), 811, at 877.

  • 49

    WTO AB 16 January 1998, EC Measures Concerning Meat and Meat Products (Hormones), WT/DS26/AB/R, at para. 165; see R. Mackenzie, n. 47 above, at 125. The interim report of the Biotech Products Panel (n. 29 above), at para. 7.289, refers to Codex definitions as ‘informative’.

  • 50

    D.G. Victor, ‘The Sanitary and Phytosanitary Agreement of the World Trade Organization: An Assessment After Five Years’, 32:4 New York University Journal of International Law and Politics (2000), 865, at 888. See also F. Veggeland and S.O. Borgen, n. 42 above, at 25; F. Veggeland and S.O. Borgen, ‘Negotiating International Food Standards: The World Trade Organization's Impact on the Codex Alimentarius Commission’, 18 Governance (2005), 675; and N. Krisch, ‘The Pluralism of Global Administrative Law’, 17:1 European Journal of International Law (2006), 247, at 260.

  • 51

    Even though rule 7(2) of the Rules of Procedure provides for the adoption of standards by simple majority of Member States present and voting, almost all Codex standards – with very few exceptions – have been adopted unanimously. See also the Measures to Facilitate Consensus, adopted in 2003, Procedural Manual, 14th edn (Codex Alimentarius Commission, 2005), at 191; on proposals for reform, see T. Hüller and M.L. Maier, n. 41 above.

  • 52

    See Principles for the Risk Analysis of Foods Derived from Biotechnology (CAC/GL 44-2003), Guideline for the Conduct of Safety Assessment of Foods Derived from Recombinant-DNA Plants (CAC/GL 45-2003) and Guideline for the Conduct of Food Safety Assessment of Foods Produced Using Recombinant-DNA Microorganisms (CAC/GL 46-2003). The US delegation insisted, however, that ‘tracing of products’ was distinct from the EU's ‘traceability’ criteria; see International Centre for Trade and Sustainable Development, ‘Codex Task Force Adopts Final Biotech Standard’, 3:5 Bridges Trade BioRes (21 March 2003).

  • 53

    See also G.E. de Vries, ‘Second Generation GM Plant Products’, in P.M. Pechan and G.E. de Vries (eds), Genes on the Menu: Facts for Knowledge-Based Decisions (Springer, 2005), 165; J.A. Paine et al., ‘Improving the Nutritional Value of Golden Rice Through Increased Pro-Vitamin A Content’, 23:4 Nature Biotechnology (2005), 482; and the Report of the Fifth Session of the Codex Ad Hoc Intergovernmental Task Force on Foods Derived from Biotechnology, Chiba, Japan, 19–23 September 2005 (ALINORM 06/29/34).

  • 54

    For background, see K.A.T. Powell, At a Standstill: The United States’ Role in Stalling International Efforts to Label Genetically Engineered Foods (US Public Interest Research Group Education Fund, 2005).

  • 55

    Report of the Thirty-Fourth Session of the Codex Committee on Food Labelling, Ottawa, Canada, 1–5 May 2006 (ALINORM 06/29/22), paras 96–97. The first meeting of the new working group is scheduled to be held in Oslo in January 2007.

  • 56

    Codex Alimentarius General Guidelines for the Use of the Term ‘Halal’ (CAC/GL 24-1997); and for pre-packaged foods, Codex Standard 1-1985/Rev. 1-1991, para. 4.5.

  • 57

    For example, see the reports of the CCFL on its twenty-fifth (1997), twenty-seventh (1999), thirty-second (2004) and thirty-third (2005) sessions; Codex Alimentarius documents ALINORM 97/22, 99/22, 04/27/22 and 05/28/22, respectively.

  • 58

    See Regulation (EC) 1830/2003, n. 14 above, recital 11 (‘to ensure that consumers are fully and reliably informed about GMOs and the products, foods and feed produced therefrom, so as to allow them to make an informed choice of product’). As mentioned in n. 32 above, however, the Biotech Products Panel chose to disregard that Regulation and instead characterized labelling under the earlier EU Directive 2001/18/EEC (of 12 March 2001) as ‘constituting SPS measures’; see European Communities – Measures Affecting the Approval and Marketing of Biotech Products, n. 29 above, at para. 7.385.

  • 59

    See Z. Makuch, ‘TBT or Not TBT, That Is the Question: The International Trade Law Implications of European Community GM Traceability and Labelling Legislation’, 13:8/9 European Environmental Law Review (2004), 226; E. Schoonejeans, Science-Based Risk Assessment, Other Legitimate Factors Justifying Trade-Restrictive Measures, and Risk Communication, Roundtable on WTO Law, Science and Risk Communication (University of Geneva, 11 May 2006). Australia and New Zealand also explicitly notified the WTO of their national GM labelling requirements as TBT measures; see D. Morgan and G. Goh, n. 15 above, at 312.

  • 60

    Federal Act on Non-Human Gene Technology (Loi sur le génie génétique) of 21 March 2003, No 814:91, Recueil systématique du droit fédéral (2003) 4803, sections 7 and 17(1); see F.X. Perrez, n. 20 above, and background in F.X. Perrez, ‘Taking Consumers Seriously: The Swiss Regulatory Approach to Genetically Modified Food’, 8:3 New York University Environmental Law Journal (2000), 585, at 588.

  • 61

    M. Dan-Cohen, ‘Conceptions of Choice and Conceptions of Autonomy’, 102:2 Ethics (1992), 221; A. Rubel and R. Streiffer, ‘Respecting the Autonomy of European and American Consumers: Defending Positive Labels on GM Foods’, 18:1 Journal of Agricultural and Environmental Ethics (2005), 75; R. Streiffer and T. Hedemann, ‘The Political Import of Intrinsic Objections to Genetically Engineered Food’, 18:2 Journal of Agricultural and Environmental Ethics (2005), 191 (consumer autonomy as ‘citizen autonomy’).

  • 62

    M.A. Echols, Food Safety and the WTO: The Interplay of Culture, Science and Technology (Kluwer Law International, 2001), at 119; T.K. Hervey, ‘Regulation of Genetically Modified Products in a Multi-Level System of Governance: Science or Citizens?’, 10:3 RECIEL (2001), 321; and G. Bossis, ‘Gestion des risques alimentaires et droit international: la prise en compte de facteurs non-scientifiques’, 107:3 Revue Générale de Droit International Public (2003), 693.

  • 63

    R. Streiffer and A. Rubel, ‘Democratic Principles and Mandatory Labelling of Genetically Engineered Food’, 18:3 Public Affairs Quarterly (2004), 223; and see D. Winickoff et al., n. 28 above. See also the GMO report of the FAO Ethics Panel, n. 13 above, at 6 (‘right to democratic participation’).

  • 64

    See D. Vogel and D. Lynch, The Regulation of GMOs in Europe and the United States: A Case-Study of Contemporary European Regulatory Politics (US Council on Foreign Relations, 2001); A. Epp, Law in Conflict: The Regulation of Genetically Modified Food in Germany and in the United States, Ph.D. Thesis (University of Bielefeld Institute for Science and Technology, 2004); G. Skogstad, ‘Regulating Food Safety Risks in the European Union: A Comparative Perspective’, in C. Ansell and D. Vogel (eds), What's the Beef? The Contested Governance of European Food Safety (The MIT Press, 2006), 213.

  • 65

    J. Fischer, Der Umbau der Industriegesellschaft: Plädoyer wider die herrschende Umweltlüge (Eichborn, 1989), at 152; English translation in U. Beck (ed.), Ecological Enlightenment: Essays on the Politics of Risk Society (Humanity Press, 1995). Joschka Fischer subsequently became German Minister of Foreign Affairs.

  • 66

    See National Environmental Policy Act, n. 6 above. On global diffusion of the model, see P.H. Sand, Lessons Learned in Global Environmental Governance (World Resources Institute, 1990), at 25; M. Yeater and L. Kurukulasuriya, ‘Environmental Impact Assessment Legislation in Developing Countries’, in S. Lin (ed.), UNEP's New Way Forward: Environmental Law and Sustainable Development (United Nations Environment Programme, 1995), 257.

  • 67

    See Emergency Planning and Community Right-to-Know Act, 42 USC 11001 et seq. (1986); and see n. 10 above. On the European PRTR, see P.H. Sand, n. 2 above.

  • 68

    See n. 10 above.

  • 69

    At the UN ECE drafting session in November 2002, the US delegation declared that it would not participate in a negotiating capacity but would ‘continue to follow this and other international processes dealing with the issue of PRTRs (UN doc. ECE/MP.PP/AC.1/2002/2, 17 December 2002), at para. 19; on the PRTR Protocol eventually adopted without US and Canadian signatures at Kiev, see Protocol on PRTRs, n. 10 above.

  • 70

    See Rio Declaration on Environment and Development (Rio de Janeiro, 14 June 1992), Principle 10. At the 2003 session of the United Nations Environment Programme (UNEP) Governing Council, a proposal for global guidelines to implement Rio Principle 10 (including more specific rules on information access) ran into opposition from the USA in coalition with China and the Group of 77 and, as a result, was deferred to 2005; after some governments (including the USA) requested more time ‘for consultation’, the UNEP Secretariat postponed the report to 2007. See Governance and Law (UNEP/GC.22/17/II/B, 7 February 2003); and C. Ganzleben et al., ‘Summary of the 22nd Session of the UNEP Governing Council and Fourth Global Ministerial Environment Forum: 3–7 February 2003’, 16:30 Earth Negotiations Bulletin (10 February 2003), at 9. Meanwhile, the Bangkok Congress of the International Union for Conservation of Nature and Natural Resources on 25 November 2004 unanimously adopted a recommendation on the Implementation of Principle 10 by Building Comprehensive Good Governance (Recommendation REC/WCC3.081, 25 November 2004) – with the US delegation alone abstaining, upon instructions from Foggy Bottom.

  • 71

    Decision II/1, Genetically Modified Organisms, Second Meeting of the Parties (Alma Aty, 27 May 2005), replacing Article 6(11) and inserting new Article 6bis (UN Doc. ECE/MP.PP/2005/2/Add.2/, 20 June 2005) Annex; see also the Guidelines on Access to Information, Public Participation and Access to Justice with respect to Genetically Modified Organisms (UN Doc. ECE/MP.PP/2003/3, 5 May 2003), paras 29–30 (‘labelling of products consisting of or containing GMOs . . . in a manner which enables consumers to make informed environmental choices about such products’).

  • 72

    Several attempts at requiring mandatory GM food labelling at the federal level were unsuccessful; for instance, see the Genetically Engineered Food Right-to-Know Acts introduced on 22 February 2000 by Sen. Barbara Boxer (D-California, S. 2080) and on 21 May 2002 by Rep. Dennis Kucinich (D-Ohio, H.R. 4814; re-introduced on 2 May 2006 as H.R. 5269). For background information, see D.M. Strauss, n. 23 above, at 100. While more stringent labelling requirements were still possible until now under US State legislation, the new National Uniformity for Food Act introduced in Congress on 27 October 2005 by Rep. Mike Rogers (R-Michigan, H.R. 4167, approved by the House for transmission to the Senate on 8 March 2006) would curtail this power; see Shredding the Food Safety Net (US Center for Science in the Public Interest/Natural Resources Defense Council, March 2006).

  • 73

    R.H. Thaler and C.R. Sunstein, ‘Libertarian Paternalism’, 93:2 American Economic Review (2003), 175; C.R. Sunstein and R.H. Thaler, ‘Libertarian Paternalism is not an Oxymoron’, 70:4 University of Chicago Law Review (2003), 1159, at 1166; C. Jolls and C.R. Sunstein, Debiasing Through Law, Olin Law and Economics Working Paper 495 (Harvard Law School, September 2004). See also E.L. Glaeser, ‘Paternalism and Psychology’, 73:1 University of Chicago Law Review (2006), 133, at 149. Classical (‘hard’) paternalism has been defined as ‘the interference with a person's liberty of action justified by reasons referring exclusively to the welfare, good, happiness, needs, interests, or values of the person being coerced’; see G. Dworkin, ‘Paternalism’, in R. Sartorius (ed.), Paternalism (University of Minnesota Press, 1983), 19, at 20. By contrast, the focus of the new soft paternalism is on non-coercive strategies ‘to debias boundedly rational behaviour’; e.g. by providing – or withholding – information.

  • 74

    See ‘The New Paternalism: The Avuncular State’, 379:8472 Economist (8 April 2006), 75. Considering, though, that the avunculus in Roman law was the maternal rather than the paternal uncle (i.e. patruus; this clarification is owed to Anne Petitpierre), it would perhaps be more accurate for ‘soft paternalism’ to be re-labelled maternalism, or Big Mother syndrome.