By Christopher D'Urso
Consumers have the fundamental right to information about the products they demand. This seemingly basic entitlement was most notably espoused by President John F. Kennedy in 1962: “if the consumer is unable to choose on an informed basis, then his dollar is wasted, his health and safety may be threatened, and the national interest suffers.” The right to know was codified in 1985 via the United Nations Guidelines for Consumer Protection. However, in recent years, this vital concept has come under attack in World Trade Organization (WTO) discussions about U.S. country of origin labeling (COOL) laws.
COOL requires that all meat products sold in America be labeled where the livestock was born, raised, and slaughtered. As a result of an alleged decrease in beef and pork imports by the U.S., Canada and Mexico challenged COOL laws in the WTO, claiming COOL is a barrier to trade which violates the General Agreement on Tariffs and Trade (GATT).
After several appeals and regulatory attempts by the U.S. to bring COOL into compliance, the WTO finally ruled in May 2015 that the COOL program remained in violation. This would allow Canada and Mexico to seek retaliatory tariffs if the U.S. does not immediately repeal COOL. In fact, Canada and Mexico have already indicated they plan to pursue $3 billion and $653 million in retaliatory tariffs, respectively.
The dispute has renewed concerns of legislators regarding the impact of international law, which I contend may be intentionally misconstrued by foreign countries to constrict America. Thus, the U.S. should reconsider its reliance on international law and WTO commitments to ensure these efforts truly serve American interests.
Primarily, the recent COOL dispute has infringed upon the U.S.’s national sovereignty by undermining the democratic process. Labeling was first mandated for meat products as part of the Farm Security and Rural Investment Act of 2002, which I maintain was enacted as a result of intense public support with 86% of consumers and 98% of producers in favor of COOL.
Since lawmakers are accountable to their constituents, they recognized the growing pressures for food traceability, especially in the wake of incidents such as the emergence of mad cow disease in Canada. However, with one fell swoop, the WTO was able to reverse years of progress by ruling that U.S. COOL laws violate free trade.
This is particularly disconcerting since the panelists who make such decisions may be from countries with different social and economic beliefs, concepts of equity and punishment, or political systems. Additionally, the panelists may be from countries which have a vested interest in the outcome of the case or which harbor animosity toward the U.S.
I fear these sentiments may strongly prejudice their rulings and may have played a significant role in the COOL decision. Specifically, the presiding member of the Appellate Body was Ricardo Ramírez-Hernández, who previously served as Deputy General Counsel for Trade Negotiations of the Ministry of Economy in Mexico for over a decade and has frequently represented Mexico in WTO trade disputes. Since Mexico was one of the primary complainants in the COOL case, I find it incredulous that Mr. Ramírez-Hernández was able to remain completely impartial. Consequently, a foreign body which may be influenced by outside biases and which was not selected by the American people should not have the authority to overturn our democratically passed laws.
Moreover, COOL laws have already been upheld in U.S. courts. In 2013, the American Meat Institute filed suit against the U.S. Department of Agriculture, claiming that mandatory COOL was a form of compelled speech and thus violated their alleged First Amendment right to remain silent. Nevertheless, the U.S. Court of Appeals for the District of Columbia ruled that COOL laws are indeed constitutional since labeling is in the public’s interest and therefore dismissed the lawsuit. Accordingly, the legitimacy of American laws should solely be determined by the American judicial system where international laws should not take precedence over the U.S. Constitution and Bill of Rights.
Equally disturbing, international law forces the U.S. to place the interests of other countries above its own. With respect to COOL, the recent WTO ruling compels the U.S. to take into consideration the alleged $900 million in losses experienced by the Canadian beef and hog industries. On the other hand, the U.S. is not permitted to legislate based on the projected $900 million increase in profits for its steak industry and $3 billion increase in profits for its ground beef industry where consumers are willing to pay a premium for products labeled as “Made in USA.”
Additionally, the U.S. is required to subjugate its consumers’ fundamental right to know information regarding products simply to line the deep pockets of Canadian and Mexican businesses. The U.S.’s inability to pursue its national interests in this scenario is particularly startling since COOL can also be used as an indirect security measure to protect the public from harmful or dangerous foods.
The U.S. Food and Drug Administration (FDA) admits that it “does not–nor will it–have the resources to adequately keep pace with the pressures of globalization.” With the lack of FDA oversight, consumers are forced to rely more heavily upon COOL to avoid foods from countries with known safety issues. Congresswoman Marcy Kaptur (D-OH) best captured these sentiments in her remarks before the House of Representatives: “It is our duty to protect American consumers, American farmers, and American ranchers, not the trade interests of any other country.”
Even outspoken critics, such as former Secretary of Homeland Security Michael Chertoff, note that international law may be advantageous as long as it is based on the consent of the affected countries. However, this contention simply does not hold water. In the context of the COOL debate, the WTO decision was largely based on GATT, an agreement which was signed by the U.S. and ratified by the Senate in 1994.
Despite GATT’s explicit allowance of mandatory COOL, the WTO ruled that COOL was a barrier to trade since record-keeping costs were unreasonably high for imported products. The majority of these costs result from the requirement that livestock be segregated for traceability so that it can be labeled with the specific country or countries where it was born, raised, and slaughtered.
I contend this segregation ensures that country of origin information is not misleading to consumers, which fulfills the requirements set forth by GATT. Consequently, there is a fundamental disconnect between the document ratified by Congress and subsequent WTO rulings. Although Congress agreed to GATT, that consent has essentially become meaningless since the WTO is apparently able to construe the treaty in any way it pleases. This concern is especially troubling when a decision is required decades after a treaty is ratified when the beliefs underlying the agreement may have fundamentally changed. Evidently, consent is simply an illusion to make the pill of international law and the corresponding loss of national sovereignty easier to swallow.
In summation, the recent WTO dispute over COOL laws clearly demonstrates how international law can be unduly detrimental to the U.S. Primarily, it undermines the democratic process by giving foreign bodies, which may be influenced by outside prejudices, final authority as opposed to Congress, U.S. courts, or most importantly the American people.
Additionally, it forces the U.S. to place the interests of other countries before its own, thus threatening our businesses, fundamental rights, safety, and security. Despite the fact the participating states consent to international laws, this agreement is nothing more than a mirage whereby interpretations of treaties can dramatically change over time, deviating from the original intent or meaning. Therefore, it is clear that the U.S., for the protection of the American people and economy, should re-evaluate the role of international law in its foreign policy, especially with respect to the WTO.
Christopher D'Urso is an assistant online editor for the Sigma Iota Rho Journal of International Relations. He is a sophomore at the University of Pennsylvania, majoring in International Relations. On June 17, 2014, Christopher testified before the Congressional-Executive Commission on China regarding COOL and food safety.
