TPP Says Food Health Policies Must Be 'Science-Based,' Except When That Would Harm Profits

from the heads-I-win,-tails-you-lose dept

The good news is that we finally have the complete text of the Trans-Pacific Partnership agreement. The bad news is that it runs to 6,194 pages, not including dozens of "related instruments" and "side chapters." There is no way that anybody could read through and fully understand the implications of all of that -- certainly not before it comes to a vote next year. But luckily, that's not necessary. Gone are the days when a single commentator would be expected to offer profound insights of a treaty's entire text. Instead, in our Internet-based world, it's very easy to do things in a highly-distributed fashion, parcelling out pieces of the task to many topic experts who carry out deep analysis in parallel.

One such source of expertise is the Institute for Agriculture and Trade Policy, which has recently produced an analysis of TPP's "Sanitary and Phytosanitary" (SPS) chapter dealing with key issues such as food safety, and animal and plant health in agricultural trade. It's well-worth reading for its detailed comments on this section, but there are two main points that it makes. First, it notes a trick that has been used in the SPS chapter: Growth hormones, food and agricultural nanotechnology, endocrine disrupting chemicals, antimicrobial resistance to anti-biotics, plant synthetic biology and so many others. Nothing about them -- among other controversial food safety, and animal, plant and environmental health issues or technologies -- appears in the SPS chapter. Instead, the chapter describes administrative procedures and consultative arrangements for resolving SPS "issues" insofar as they might impede agricultural trade. Here's what happened to those key areas: The [TPP] negotiators decided to locate provisions on "Trade in Products of Modern Biotechnology" for agricultural trade (Article 2.29) in Chapter 2, "National Treatment and Market Access for Goods," apparently believing that "modern biotechnology" does not pose SPS issues about which there might be controversy. That is, the TPP text tries to sidestep all the heated controversies over the possible safety issues of modern biotechnology by omitting them completely from the chapter dealing with this aspect. The other discovery made by the Institute for Agriculture and Trade Policy concerns a requirement to use "science-based" approaches when TPP countries establish their food safety rules: It is crucial to understand how scientific evidence is subordinated and occulted as Confidential Business Information to realizing trade objectives through the regulatory process. Under the TPP rules and trade policy more generally, what trade and regulatory officials deem to be "appropriate" levels of protection are judged on whether SPS measures to provide that protection are potential or "disguised" trade barriers. Such judgments require a use and understanding of "science" that is filtered through confidentiality requirements, which are antithetical to the peer review that scientific consensus methodologically requires. TPP SPS Committee consultations about the science underlying SPS measures "shall be kept confidential unless the consulting Parties agree otherwise" (Article 7.17.6). TPP does not require traditional rigorous science where results are published openly, subject to peer review, but permits the use of "confidential business information," where results are withheld and there is no peer review. How that will work in practice is shown by a recent decision by the US Environmental Protection Agency (EPA) that there was "no convincing evidence" that glyphosate, the most widely used herbicide in the US and the world, is an endocrine disruptor. As The Intercept discovered: The EPA's exoneration -- which means that the agency will not require additional tests of the chemical's effects on the hormonal system -- is undercut by the fact that the decision was based almost entirely on pesticide industry studies. Only five independently funded studies were considered in the review of whether glyphosate interferes with the endocrine system. Twenty-seven out of 32 studies that looked at glyphosate's effect on hormones and were cited in the June review-- most of which are not publicly available and were obtained by The Intercept through a Freedom of Information Act request -- were either conducted or funded by industry. Most of the studies were sponsored by Monsanto or an industry group called the Joint Glyphosate Task Force. One study was by Syngenta, which sells its own glyphosate-containing herbicide, Touchdown. TPP guarantees that companies can provide SPS Committee consultations with their own confidential research in a similar way, and that no outside scrutiny will be permitted unless those companies agree. As well as allowing secret "scientific" evidence to be used, the SPS chapter also gives TPP signatories an option to ignore scientific evidence completely on the grounds that it lacks "economic feasibility": The "economic feasibility" of the science-based SPS measures to provide the appropriate level of protection is formulated in this provision: "Each Party shall . . . select a risk management option that is not more trade restrictive than necessary to achieve the sanitary or phytosanitary objective, taking into account technical and economic feasibility" (Article 7.6c). "Economic feasibility" provides TPP members with a crucial loophole against providing SPS measures that are science-based. In other words, TPP requires decisions on food safety and animal welfare to be "science"-based, where "science" includes unpublished studies carried out by companies, except when the science shows unequivocally that more stringent measures should be taken to protect health. In that case, countries are allowed to put profits before people, and to ignore the facts completely.

This latest analysis from the Institute for Agriculture and Trade Policy is significant not just because it will help to inform the debate around TPP, and whether it should be ratified. It is also important because it reveals what will almost certainly be the approach taken in TAFTA/TTIP too. Since that is nowhere near finished, unlike TPP, that means it is still possible to put pressure on the negotiators not to sell out on public and animal health as we now know they have done in TPP.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community. Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis. While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: food, health, science, tpp