13 Mar 2024
Professor Matt Schaefer's article, Gene-Edited Crops and Food and the Bold Path Forward in U.S. Trade Agreements, has been published in the North Carolina Journal of Inerational Law and Commercial Regulation.
Read the abstract below:
Gene-edited crops and food have the capability to enhance human nutrition, food security and agricultural sustainability. In contrast to GM crops and food, most gene-editing techniques do not leave any foreign or exogenous DNA in the plant (nor in any food products made from the plant). Yet, there is a real risk that gene-edited crops and food will succumb to the negative regulatory treatment and consumer (mis)perceptions that have befallen GM crops and food. Indeed, the EU – the second largest market behind the United States – through court decision has lumped GM and gene-edited crops and food together for the same onerous regulatory treatment. The United States, in contrast, has completed regulatory reform efforts in the past five years that ensure that gene-edited crops will not be subject to restrictive pre-approvals, nor to mandatory labeling. Countries comprising the other roughly 3/5ths of world GDP have taken a variety of approaches. The countries within the Americas, led by Argentina, have largely followed the lead of the US. Approaches in Africa and Asia vary widely and are still in development.
The best strategy for the United States to ensure a favorable gene-edited crop and food regulatory environment, both in terms of approval and labeling, is to establish pro-gene-editing trade deals via new-styled, noncomprehensive trade agreements or issue-specific trade deals on a regional or bilateral basis in major markets in each continent of the globe. There are good candidates in each world region based on a variety of factors, including large market size, currently favorable or “under review” gene-editing policy, and the presence of current ongoing negotiations or prospective negotiations on a regional or bilateral new-style noncomprehensive agreement with the United States. WTO litigation will not be an effective strategy to achieve favorable regulatory treatment of gene-edited crops and food due to the collapse of the WTO Appellate Body. Moreover, even if the WTO dispute settlement system is fixed in the near future, there is always a significant risk of backlash or hardening of positions through use of WTO litigation on such issues. However, the US can use legal arguments indicating the inconsistency of anti-gene-editing approval and labeling measures with WTO commitments in its diplomacy and during negotiations with other countries. Once the United States has established pro-gene-editing entryways in each continent, the United States can seek to expand those pro-gene-editing provisions to broader regional comprehensive deals – when the US elects to re-engage in those efforts – and/or a WTO plurilateral agreement with broad subscription– when the WTO negotiating pillar revives and strengthens. Importantly, the United States should seek bolder provisions in these new agreements than was achieved in the USMCA and the China Phase I trade deal. Specifically, such agreements should pursue provisions on approval and labeling that harmonize roughly around the US approach and/or incorporate a measure of mutual recognition of gene-edited products.