Comments to the Appellate Body of the World Trade Organization: EC Measures Concerning Meat and Meat Products
October 31, 1997
Independence and Impartiality of Experts
The United States and the EC agreed that the Panel's use of experts should be free of conflicts of interest.(24) The advice provided by the experts -- and therefore of any panel decision that uses that advice -- can only be credible if the choice of experts ensures that the experts will be able to consider the information before them objectively and provide unbiased advice. For this reason, the experts must be independent and impartial.
The Panel's report does not make clear what standards, if any, standards it applied to ensure that its experts were independent and impartial. For example, the Panel provided no indication that it considered whether the experts had financial or other links to industries that have a stake in the dispute, such as pharmaceutical and livestock industries, and did not provide any information to allow the public to reassure itself that no such ties existed.
The Panel's close collaboration with the Codex Alimentarius Commission created a perception of conflict that threatens to taint the Panel's entire Report. Under the circumstances of this case, in which the experts will be asked to consider the science underlying the European Community's consideration of issues previously addressed by the Codex Alimentarius Commission, the advisers should not have participated in the Codex deliberations, as they may be inclined -- either actually or in popular perception -- to reaffirm Codex's previous conclusions. Codex has addressed the issues considered by the panel several times, including in a 1988 report that the United States cited in support of its position in the dispute and that the European Communities argued was incorrect. Because Codex has taken a public position with respect to the issues before the Panel, it is inappropriate for Codex or experts who have participated in its deliberations to participate in the advisory panel. Despite this obvious concern, Codex influence permeated the advisory process.
According to the Panel Report, the Panel selected at least two of its five experts from lists provided by Codex and the International Agency for Research on Cancer.(25) Although the Panel provided very little background information on the experts that it chose, there has been some suggestion that at least one of the two experts chosen from the Codex/IARC lists -- Dr. Jock McLean -- was actually a member of the Codex group that produced the 1988 report relied on by the United States. In addition to choosing its experts from a list provided by Codex, the Panel submitted written questions to the Codex Commission secretariat and involved a sixth expert, who represented the Codex secretariat, in its expert deliberations.(26) Using individuals associated with the Codex deliberations or recommended by Codex creates, at a minimum, an appearance of lack of independence and may thereby raise doubts concerning the Panel's dependence on those the experts in resolving the dispute.
In addition to avoiding individuals involved in groups like Codex that have a stake in the outcome of the dispute, the Panel should not have included experts with close ties to governments with a stake in the outcome, particularly governments party to the disputes at issue. Two members, Drs. Arnold and Lucier, are employed by governments involved in the dispute. In addition, there is information suggesting that Dr. Ritter has served for considerable time as an official of the Canadian government. These connections raise suspicions concerning the ability of the experts to provide impartial input to the Panel.
If the Panel found that it was unable to avoid including experts with the kinds of problematic connections described above, it should at least have taken steps to ensure that the expert group included a balance of perspectives concerning the scientific issues in dispute. It is clear from the statements of the scientists who participated in the Panel's Joint Meeting with Experts that the Panel could have found scientists with opinions that differ greatly from those of the scientists chosen by the Panel.
As we stated earlier, the Panel did not provide sufficient information to assure the public of the experts' independence and impartiality. The information that is available, however, creates the perception that the Panel may not have received balanced, unbiased advice from its experts. Such a perception undermines the credibility of the Panel's report.
The Experts' Qualifications
It should go without saying that the legitimacy of and public confidence in the Panel's use of expert advisers depends heavily on the qualifications of its advisers. As noted above, the Panel's scientific role is limited to evaluating whether the science underlying the EC's sanitary measures has the minimal attributes of scientific inquiry. The experts that the Panel used to make this evaluation must be qualified to do so.
The Panel should have provided curricula vitae for all of its experts and should have identified the areas with respect to which each was considered an expert. The Panel should also have addressed each of its questions only to those advisers who were truly experts in the area of inquiry at issue.
We have expressed above our concern that the Panel used its experts to address issues far beyond the Panel's authority under the SPS Agreement. However, even if the Panel's broad questions were appropriate, it appears that the members of the advisory group were not qualified to address many of those questions. In several instances, the group members themselves expressed concern about their qualifications to address the questions.(27) Even when the experts did not expressly indicate their lack of expertise, it is hard to believe that all of them -- and in some cases any of them -- are qualified to provide expert advice concerning many of the questions that they answered. For example, the Panel asked the experts to address the feasibility of labeling products containing meat from hormone-treated animals. There is no indication that any of the Panel's advisers has any expertise that relates to labeling.
The Panel also requested the experts to address the question of the relative ability of governments to control the abuse of growth hormones and ensure the use of good veterinary practices when all hormones are banned as compared to when some are permitted. Once again, it appears that most of the expert advisers had no expertise on this subject. Dr. Arnold stated that he was "reluctant" to answer the question because it was "subject to speculation," but nevertheless provided an answer based on several assumptions.(28) Dr. Lucier also explained that his answer to the question was only "speculation," based on his "feeling" and a "guess."(29) Despite these express reservations, the Panel concluded that "the experts advising the Panel made clear that the potential for abuse under both regimes would be comparable. . . . In this context, we note, therefore, that banning the use of a substance does not necessarily offer better protection of human health than other means of regulating its use."(30)
More problematic, however, is the Panel's omission of the fact that at least one expert actually reached the opposite conclusion on this issue, stating that experience in his country had shown that abuse increased when some use of growth hormones was allowed and expressing his opinion that "the authorization, legalization, of these compounds had no effect, real effect on some black market," and that control of the use of some hormones was easier when all were banned.(31) The Panel's use of speculative statements from its experts, as well as its omission of the conflicting statements of one expert, place the legitimacy of the Panel's conclusions in doubt and undermines the credibility of those aspects of its decision that rely on expert input.
Another serious omission that undermines the credibility of the Panel's use of expert advisers is the Panel's failure to demand support for the experts' "opinions." The Panel apparently did not require that the experts indicate whether there was a scientific basis for each answer (and if so, what that basis was), nor did it require the experts to distinguish between their personal opinions and conclusions drawn on the basis of data or peer-reviewed scientific studies. No scientific opinion is credible without proof that it is actually based on scientific evidence. Even when the experts did not explicitly express the speculative nature of their opinions, the Panel required nothing to assure it -- or the public -- that the experts' opinions were grounded in the scientific method and had been confirmed through the process of peer review. Without such assurances, the legitimacy of the Panel's entire report is questionable.
The Experts' Access to Relevant Information
Another essential test of the validity of the experts' opinions is whether they have considered all of the relevant information pertaining to the scientific or technical issues before them. Without the opportunity to examine all relevant information, the experts' conclusions will be meaningless, and the Panel's reliance on them is suspect.
Simply allowing the experts to review the record in the dispute was not sufficient to ensure that the experts will have access to all relevant information. The parties to the dispute may not have had access to all relevant information or may have chosen not to submit even valuable information to the Panel for political or strategic reasons, such as not wanting to establish a precedent that would undercut their position in an unrelated dispute.
To ensure that the experts are able to consider all relevant information, the panel should have notified the public of its decision to use expert advisers and of the experts' mandate. Such notice should have include the identity of the experts and what information they were provided. In addition, the public should have been invited to provide information that was relevant to the experts' mandate -- that is, information that bears on whether the EC used valid scientific methods and procedures in implementing and maintaining the sanitary measures at issue.
The experts should also have been encouraged to request information on this issue from outside sources of their choosing and to serve as conduits for information from the scientific community.(32) The scientific process depends on constant exchange of ideas among scientists and the experts are likely to have been aware of valuable sources of information that might not otherwise be made available to them. Without the opportunity to consider information from other scientists and the public, the conclusions of the expert advisers are likely to be incomplete and may be considered untrustworthy.
THE PANEL'S INTERFERENCE WITH THE RIGHT OF THE EUROPEAN COMMUNITY TO CHOOSE A LEVEL OF PROTECTION THROUGH ITS MISINTERPRETATION OF ARTICLE 5.5
As noted above, one of the most important ways in which the SPS Agreement protects the ability of governments to take action against health risks is through its explicit protection of each country's freedom to choose the level of protection it considers appropriate. In addition to taking on the responsibility of resolving conflicts in scientific evidence, the Hormone Panel's interpretation of Article 5.5 of the SPS Agreement further undermined this freedom.
As part of the overall goal of the SPS Agreement to prevent trade protective measures, the Agreement attempts to ensure that a country's choice of a level of protection is not really a cover for such a measure. To this end, Article 5.5 requires each Member to
avoid arbitrary or unjustifiable distinctions in the levels [of protection] it considers appropriate in different situations, if such distinctions result in discrimination or a disguised restriction on international trade.
The Hormone Panel analyzed several "distinctions" in the EC's levels of protection and concluded that each one resulted in discrimination or a disguised restriction on international trade. Two of the distinctions that the Panel addressed involved comparing the use of growth hormones with the natural presence of hormones in meat and other foods. The Panel concluded that because the EC bans the use of growth hormones, but takes no action to prevent the consumption of untreated foods containing hormones, the distinction was arbitrary or unjustifiable. This conclusion ignored the fact that risk is only one of many factors to be considered in determining the appropriate level of protection.
When a nation identifies a potential risk to human health, it must decide whether and to what extent to take steps to protect against that risk. While science plays an important role in identifying the existence of a risk, the decision concerning the appropriate response to that risk is political. It requires weighing the evidence, which may be conflicting, that the risk exists. More significantly, it requires weighing how much the citizens of the country fear the particular risk and how much, if at all, they value the benefits that the activity or substance provides.
By balancing concern about the risk against the value of the substance that poses the risk, the government of a country can determine what amount of that risk is acceptable to its citizens and, therefore, what level of protection against that risk it must strive to attain. This decision goes to the heart of what governments do -- determine appropriate actions based on the fears and values of citizens.(33) Because of the essentially political nature of the choice of a level of protection against risk, customary international law and the SPS Agreement protect the right of countries to make this choice.
In comparing levels of protection for the purposes of Article 5.5, therefore, it is important to consider all factors that could justify apparently different levels of protection, not just the amount of risk at issue. For example, it may be that the benefit to be obtained from one potentially carcinogenic activity (such as the use of x-rays) is considered to be greater, and thus to justify a greater risk, than the benefit from another potentially carcinogenic activity (such as using DDT). In addition, the benefit to be obtained from a potentially risky activity may carry more weight if there are few or no safer alternative means of obtaining that benefit. It is important that Article 5.5 not be interpreted as limiting the relevant factors to the amount of risk to which allegedly different levels of protection correspond.
Another mistake that the Panel made in its analysis of the EC measures under Article 5.5 was the significance that it placed on "objectives (other than the protection of human health) that the [EC] had in mind when enacting or maintaining the EC ban" as an "additional factor" in finding that the EC distinctions resulted in discrimination.(34) As noted above, the fundamental goal of the SPS Agreement is to prevent false claims of the need to protect health from being used as a cover for trade restrictions without impairing the ability of countries to protect health where the need to do so is scientifically justified. If both objectives of this goal are to be met, the only possibly relevant question concerning objectives underlying an SPS measure is whether there is a legitimate scientific justification. If a scientific justification exists, it should not matter that the measure achieves other goals.
Political decisions are nearly always the result of compromises made by decisionmakers with numerous -- and sometimes conflicting -- concerns. Even if it were possible for dispute resolution panels to untangle this web of motives to identify a single "real" one, attempting to do so would interfere in countries' sovereign political processes. The Appellate Panel should not permit the Panel's consideration of the EC's "other objectives" to remain a basis for concluding that the EC's level of protection results in discrimination.
The Panel's second "additional factor" is also based on an erroneous interpretation of Article 5.5. The Panel considered the fact that the percentage of animals treated with growth hormones before the EC ban came into force was significantly lower in the EC than in the United States. The Panel then concluded that a ban on the sale and import of meat treated with growth hormones "de facto discriminates against US meat in favour of EC meat" and, "in this sense, the difference in levels of protection . . . could be said to result in 'discrimination or a disguised restriction on international trade.'"(35) This kind of disparate impact analysis has already been rejected by a GATT dispute resolution panel.
In United States -- Taxes on Automobiles, the panel considered whether taxes that had a disparate impact on like foreign and domestic products created a distinction drawn "so as to afford protection" to the domestic products. The panel rejected repeated arguments by the EC that the taxes' disparate impact was evidence of an intent to protect domestic products. As the panel noted, because the taxes had a legitimate purpose and were neutral on their face, "the fact that the EC automobiles bore most of the burden of the tax did not mean that the measure had the effect of affording protection to United States production."
The same is true in the present case. It would be a dangerous precedent to find facially nondiscriminatory health measures to be an unfair trade barrier simply because they have a disparate impact. If the measures are scientifically justified, that should end the inquiry.
The SPS Agreement requires WTO dispute panels to make decisions that directly affect the efforts of governments to protect the health and well-being of billions of people. Therefore, public health and public confidence in the WTO depend on the panels' ability to remain within the bounds of their competence under the Agreement.
The SPS Agreement is intended to prevent false health claims from being used to disguise trade restrictions without interfering with the ability of governments to protect against real threats to health. To achieve both of these objectives, it is essential that dispute resolution panels applying the Agreement carefully limit their role to determining whether the sanitary measures at issue are a cover for restrictions on international trade.
Unfortunately, the panel that considered the challenge to the EC's ban on trade in hormone-treated meat went beyond this role, attempting instead to determine the appropriate standards for protecting human health. In the process, the Panel addressed many unnecessary issues and developed rules that will impair the ability of governments to protect their citizens against health risks. Unless the Appellate Panel corrects these mistakes, public confidence in the legitimacy of the WTO severely weakened and the WTO will undermine countries' sovereign prerogatives to protect their citizens.
1.Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement), Art. 2.2 (measures must be applied and maintained on the basis of "scientific principles" and "scientific evidence"), Art. 3.3 (measures resulting in a higher level of protection than would be achieved through international standards must have a "scientific justification"), Art. 5 (requiring SPS measures to be based on a risk assessment that takes into account scientific evidence).
2.See id., Preamble (expressing desire to further harmonization of SPS standards "without requiring Members to change their appropriate level of protection"), Art. 3.3 (permitting measures resulting in higher level of protection than would be achieved through international standards "as a consequence of the level of the level of sanitary or phytosanitary protection a Member determines to be appropriate").
3.Undertaking the Agreement on Sanitary and Phytosanitary Measures, Background Paper, GATT Secretariat, 28 Jan. 1994, p. 1.
4.EC Measures Concerning Meat and Meat Products (Hormones), Complaint by the United States, Report of the Panel (Panel Report (US)), WT/DS26/R/USA, 18 Aug. 1997, para. 8.115.
5.SPS Agreement, Art. 2.2 (requiring sanitary measures to be "based on scientific principles" and "not maintained without sufficient scientific evidence").
6.SPS Agreement., Art. 2.2 (emphasis added).
7.Panel Report (US), para. 8.79.
8.SPS Agreement, Art. 3.3 (emphasis added).
9.Id., Art. 3.3 n.2 (emphasis added).
10.Id., Art. 5.2 (emphasis added).
11.This point can be illustrated by the following example. Suppose two people are preparing to leave their homes to go to the office in the morning and each checks several weather forecasts before doing so to determine whether to take precautions against getting wet from rain. Assume further that these people are seeking to achieve different levels of protection: one is willing to suffer a little wetness but would prefer not to get extremely wet; the other considers it extremely important to avoid getting wet (i.e., has chosen a higher level of protection). Four out of five forecasts indicate that it is most likely not going to rain during the day, but the fifth, using a new and controversial forecasting method, indicates that it is likely to rain. The person who is willing to get a little wet is likely to take fewer precautions against rain on the chance that the new forecasting method is not as reliable as the method used by the other four forecasts. The person with the higher level of protection is more likely to consider the possibility that the new method may be accurate and take precautions against rain. Forcing the second person to act on the basis of the majority of the evidence effectively lowers the level of protection that she is permitted to choose.
That is not to say, however, that scientific experts have no role in this scenario. As under the SPS Agreement, scientific experts could offer an opinion as to whether the new forecasting method is based on a minimally scientific inquiry concerning the weather (in which case, the SPS Agreement would require that the individual be permitted to decide whether to take precautions based on the forecast) or is based on something unscientific, such as astrological predictions.
12.The United States and the European Community have each expressed their agreement with these principles. The United States has stated:
It is clear that the requirement in the [SPS] Agreement that measures be based on scientific principles and not be maintained "without sufficient scientific evidence" would not authorize a dispute settlement panel to substitute its scientific judgment for that of the government maintaining the [SPS] measure. For example, by requiring measures to be based on scientific principles (rather than, for instance, requiring measures to be based on the "best" science) and not to be maintained without sufficient scientific evidence (rather than, for instance, requiring an examination of the "weight of the evidence"), the [SPS] Agreement recognizes the fact that scientific certainty is rare and many scientific determinations require judgments between differing scientific views. The [SPS] Agreement preserves the ability of governments to make such judgments.
The Uruguay Round Agreements Act, Statement of Administrative Action at 90, 95 (emphasis in original). See also Report on US Food Safety and the Uruguay Round, Protecting Consumers and Promoting US Exports (USTR Report on Food Safety) at 8 (USTR June 1994) at ii; id. at 15 ("[D]ispute settlement panels will not be responsible for choosing among competing scientific views, but will only determine whether a particular SPS measure has a scientific basis" (emphasis added)).
The European Community expressed its agreement with these principles in the Written Version of the European Community's Oral Statement at the Second Substantive Meeting of [the Hormone Panel], pp. 34-35, and in its Second Written Submission (Rebuttal) to the Hormone Panel, pp. 17-18.
13.Panel Report (US), para. 8.131 (emphasis added).
14.Id., para. 8.131, n. 342 (emphasis added).
15.Id., para. 8.134. See also id., para. 8.127 (rejecting evidence included in IARC studies because the studies "do not specifically evaluate . . . the potential for adverse effects arising from the presence in food (in casu meat or meat products) of residues of the hormones in dispute or form residue levels comparable to those present in food"); id., para. 8.130 (rejecting the articles and opinions of individual scientists dealing with carcinogenic or genotoxic potential of hormones for the same reason).
16.SPS Agreement, Annex A, para. 4 (emphasis added). The SPS Agreement's definition of "risk" as the "potential for adverse effects" agrees with the common understanding of that phrase as meaning "exposure to the chance of injury or loss." Random House Dictionary of the English Language 1660 (2d ed. unabridged 1987).
17.Panel Report (US), paras. 8.157-8.158 (emphasis added).
18.See E. Hey, The Precautionary Principle in Environmental Policy and Law: Institutionalizing Caution, 4 Geo. Int'l Env'l L. Rev. 303, 308-09 (1992).
19.The precautionary principle has been included in numerous multilateral international treaties and declarations. Examples of these include the Rio Declaration on Environment and Development, UN Conference on Environment and Development, U.N. Doc. A/CONF.151/5/Rev.1 (1992), reprinted in 31 I.L.M. 874 (1992) ("In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation."); the Framework Convention on Climate Change, U.N. Doc. A/AC.237/18 (Part II)/Add.1 (1992), reprinted in 31 I.L.M. 849 ("The Parties should take precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing such measures"); the Ministerial Declaration of the Second World Climate Conference, Nov. 7, 1990, reprinted in 1 Y.B. Int'l Env'l L. 473 (1990) (ministers and representatives of 137 countries agree to "protect the ozone layer by taking precautionary measures to control . . . emission of substances that deplete it"); the Second International Conference on the Protection of the North Sea, Ministerial Declaration 1 (1987) (ministers of the EEC and eight countries agree that the North Sea ecosystem should be protected through the reduction of pollution "even where there is no scientific evidence to prove a causal link between emissions and effects ('the principle of precautionary action')"); the World Charter for Nature, G.A. Res. 37/7, U.N. GAOR, 37th Sess., Supp. No. 51, U.N. Doc. A/Res/37/7 (1982), reprinted in 22 I.L.M. 455 (1983) ("Activities which are likely to pose a significant risk to nature shall be preceded by an exhaustive examination; their proponents shall demonstrate that expected benefits outweigh potential damage to nature, and where potential adverse effects are not fully understood, the activities should not proceed.").
20.Philippe Sands, The Greening of International Law: Emerging Principles and Rules, 1 Global Legal Studies J. 293, 301 (1994). See generally Interpreting the Precautionary Principle 262 (Tim O'Riordan & James Cameron eds. 1994).
21.Panel Report (US)., para. 8.151.
22.Id., para. 8.153.
23.Id., paras. 6.1, 6.3.
25 Id., paras. 6.6, 6.7.
26 Id., paras. 6.7, 6.10; Transcript of Joint Meeting with Experts, held on 17 and 18 February 1997 (Joint Meeting Transcript), Panel Report (US), Annex, para. 26.
27.For example, Dr. Lucier explained that he had "little expertise" in the area of good animal husbandry practice addressed by Question 1. Panel Report (US), para. 6.17. Nevertheless, Dr. Lucier apparently considered it appropriate to express an opinion based on what appeared to him to "seem reasonable to assume." Id. Other advisers similarly answered questions despite their admitted lack of expertise. See, e.g., id., paras. 6.203 and 6.234 (in which Dr. André expresses belief that Questions 23 and 28 are "not related to scientific expertise" but nevertheless answers "from a personal point of view"), 6.210 (Dr. Ritter has "no expertise" in the area of enforcement, but provides his opinion).
28.Joint Meeting Transcript, Panel Report (US), Annex, para. 269.
29.Id., para. 274.
30.Panel Report (US), para. 8.146.
31.Joint Meeting Transcript, Panel Report (US), Annex, paras. 168, 362.
32.The provisions of the WTO Understanding on Rules and Procedures Governing the Settlement of Disputes concerning Expert Review Groups (Appendix 4, para. 4) provides that "expert review groups may consult and seek information and technical advice from any source they deem appropriate."
33. The United States has recognized that the SPS Agreement's definition of appropriate level of protection explicitly affirms the right of each government to choose its levels of protection, including a "zero risk" level if it so chooses. A government may establish its level of protection by any means available under its law, including by referendum. In the end, the choice of the appropriate level of protection is a societal value judgment. The Agreement imposes no requirement to establish a scientific basis for the chosen level of protection because the choice is not a scientific judgment.
The Uruguay Round Agreements Act, Statement of Administrative Action at 89. See also USTR Report on Food Safety at 4, 6 ("[T]he requirement for a scientific basis applies to SPS measures; it does not apply to the level of food safety that those measures are designed to achieve. . . . [T]he Agreement specifically preserves the right of governments to choose the level of risk they find acceptable" (emphases (both bold and underline) in original)).
34.Panel Report (US), para. 8.204.
35.Id., para. 8.205.