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Toxics and Public Health
Over-reaching rules in the World Trade Organization (WTO) agreements, the North American Free Trade Agreement (NAFTA), and other NAFTA-style pacts conflict with some key initiatives states are creating to safeguard the public against toxic chemicals. This shows how desperately the existing “trade” rules need reform.

For instance, the WTO contains a general prohibition on “quantitative restrictions” i.e. a ban of a particular chemical or product. Even bans on toxic chemicals that apply equally to domestic and imported goods are only considered WTO-legal if they meet certain absolute limits on regulation. These include a provision stating that federal and state measures must be based on international standards. Among the recognized standards are those set by the industries in question! Unfortunately, under WTO rules, international standards serve as a ceiling – rather than a floor – for policies. Policies taking precautionary actions that improve upon poor international standards are subject to challenge. Plus, domestic toxic rules relating to product characteristics, labeling, and packaging are required to be “no more trade restrictive than necessary” to achieve their purpose. This very subjective standard would be judged by a WTO dispute resolution tribunal comprised of trade experts with no toxics regulatory expertise.

The WTO also contains most-favored-nation obligations, which prohibit treating products imported from one WTO country differently than goods from other countries. This conflicts with policies focusing on products from countries with known problems with lead and other toxic chemicals. The rules also require that “like products” produced domestically and offshore be treated the same, but what is a “like product” is highly subjective. This would be decided by a tribunal of trade experts, who might consider bans on certain baby bottles (for instance) to be discrimination against a “like product,” if less toxic alternative bottles were allowed.

Because of rules like these, anti-toxics campaigners have long had to battle against industry use of trade threats, such as those aimed at chilling toxin bans, policy innovations and the search for nontoxic alternatives. Interests who oppose improved safety standards loudly tout how countries, states and localities could be subject to trade challenges if they institute precautionary health and environmental policies that require changes in production processes or design. States need to push back on this usurpation of their authority as democratically elected state officials, and demand changes to trade agreements. This would allow them to appropriately address new and emerging hazards in the absence of federal leadership.

To find out more about how WTO rules are affecting states' ability to regulate in the public interest, visit our State and Local Governance page.

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