Protect consumers and ensure a level playing field for U.S. businesses, farmers and workers by ending NAFTA rules that threaten food safety and labeling.
How does NAFTA 2.0 measure up?
The text includes more expansive and detailed restraints on signatory countries’ domestic food safety and inspection policies than the original NAFTA. While strong opposition by members of the U.S. Congress resulted in the demise of a no-junk-food-labelling proposal that would have forbidden countries from requiring consumer warnings on the packaging of sugary drinks and fatty snack foods, the text otherwise represents the demands and goals of the food processing industry and agribusiness. It includes many policies undermining consumer health and safety that these interests have pushed into U.S. law and practice and seek to expand. In numerous ways, the text prioritizes trade facilitation over food safety. It limits how domestic food safety standards may be designed, by requiring overdue reliance on the “scientific evidence” of risks, despite this information often being based on industry research – with the goal of “assessing” and “managing” health risks, not eliminating them.
Demand: Imported food must be required to meet U.S. safety standards, not the safety and inspection standards of Mexico and Canada.
The new text retains the old NAFTA “equivalence” standard that currently requires the United States to import meat and poultry from Mexico and Canada that does not meet U.S. safety or inspection standards. The NAFTA countries have also committed to the same equivalence regime, which prioritizes trade facilitation over food safety, in the WTO’s food standards agreement. Like the new NAFTA text, the WTO agreement specifically notes that an importing country must conduct an “equivalence” assessment if requested by an exporting country “even if these measures differ from their own.” The new NAFTA text, like the TPP’s food standards text, calls on countries to consider deeming another countries’ entire food safety system to be equivalent, rather than determining equivalence for specific products. While it also contemplates that countries may reject such requests with respect to products or whole systems, with procedures to notify the other country that its request was denied, it also includes more specific procedures for how to conduct equivalence assessments without “undue delay.” Under the equivalence regime, a country is required to admit products from any processing facility deemed by the other country to meet that country’s requirements, even if core elements of its own food safety regime are not met. Before NAFTA the United States only accepted imports from one Mexican plant specifically certified by U.S. inspectors to meet U.S. standards. Now we accept all meat and poultry from any Mexican or Canadian processing plant.
Demand: Enhanced border inspection must be added.
Instead of improving food safety border inspection, the new text replicates the old NAFTA language that prioritizes trade facilitation over food safety and adds additional limits on inspection. For instance, both the old and new NAFTA texts, as well as the food standards of the WTO, include rules on import checks that oblige countries to limit requirements regarding individual specimens or samples of an import to those that are “reasonable and necessary.” What is “reasonable and necessary” is an inherently subjective matter and the inclusion of this standard in trade pacts means that judgements made by a country’s food safety officials in interpreting their countries’ import safety policies are open to challenge in trade dispute resolution procedures, where tribunals of trade lawyers can second-guess domestic food safety policies related to border inspection. The new NAFTA text, like the TPP, spells out in much more detail than the original NAFTA constraints on border import checks. For instance, both pacts specify that, “An importing Party shall ensure that its final decision in response to a finding of non-conformity with the importing Party’s sanitary or phytosanitary measure is limited to what is reasonable and necessary in response to the non-conformity.” The provision is designed to limit the actions a country may consider, for instance, simply banning imports of a product after finding problems with the samples it tested. And by using the vague “reasonable and necessary” standard, it creates incentives for countries’ food safety officials to err on the side of promoting trade, not food safety, so as not to be second-guessed by a trade tribunal. In addition, the text has detailed rules not included in the original NAFTA about how countries may audit other countries’ implementation of and compliance with their food safety policies. These terms prioritize review of documents and do not mandate that countries being audited provide access to food processing facilities or locations where food is being produced.
Demand: Food labeling regimes – including mandatory country-of-origin labels for meat and dolphin-safe labels for tuna – must be explicitly affirmed and protected so consumers can make informed choices.
These problems were not addressed, much less resolved, in the new NAFTA agreement. Mexico and Canada successfully challenged U.S. Country of Origin Labeling (COOL) policies at the WTO. In late 2015, under threat of the imposition of $1 billion in WTO-approved sanctions against U.S. exports, Congress gutted the policy that provided consumer information about where their meat and poultry was produced. And Mexico successfully challenged the U.S. ban on tuna caught using nets that encircle and kill dolphins, leading to the elimination of an embargo on such tuna. Mexico then successfully challenged a voluntary labeling program that allowed consumers to choose dolphin-safe tuna. A final WTO ruling on that case is pending. The new text includes problematic provisions not found in the original NAFTA text that could limit other product labeling regimes. It requires countries to ensure that their “technical regulations concerning labels … do not create unnecessary obstacles to trade.” This subjective standard, found in the new NAFTA’s Technical Barriers to Trade Chapter must be read in combination with terms in the chapter on food standards which prohibit certification requirements concerning “the quality of a product or information relating to consumer preferences.” Together, these terms could newly expose to challenge labeling policies deemed not to pertain to food safety per se, for instance relating to Genetically Modified Organisms (GMO) or organic standards. The GMO issue is of special note, given that the new text’s Agriculture Chapter includes terms on agricultural biotechnology also found in the TPP text. While these terms do not require countries to approve GMO products, they are designed “to reduce the likelihood of disruptions to trade in products of agricultural biotechnology,” to speed up countries’ review of applications for approval of GMO seeds and foods, and to apply measured responses to incidents of low levels of GMO contamination in non-GMO products. Given the various requirements for risk assessment and scientific evidence of risks in the food chapter and limits in the Technical Barriers to Trade Chapter, this agreement, like the TPP, is designed to promote agricultural biotechnology and limit policies that help consumers avoid exposure to such products.